en  or  pencil  na:^k8. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Gift  of 
Howard  Surr 


I 


/ 


A  TREATISE 


LAW  OF  BILLS  OF  LADING. 


BY 

WILLIAM  W.  PORTEE, 

OF   THE   PHILADELPHIA  BAR. 


PHILADELPHIA: 

KAY   AND   BROTHER, 

LAW  BOOKSELLERS,  PUBLISHERS,  AND  IMPORTERS. 

1891. 


FS5S8  y 


Entered  according  to  Act  of  Congress,  in  the  year  1S91,  bj 

WILLIAM    W.    PORTER, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Collins  Pbisting  House, 
705  Jayne  Street. 


PREFACE 


This  is  believed  to  be  the  first  American  work  on 
the  law  relating  to  Bills  of  Lading.  The  subject  has 
been  touched  upon  in  text  books  on  kindred  subjects, 
but  is  worthy  of  a  more  extended  treatment. 

The  work  of  the  author  has  been  done  in  spare 
moments,  in  the  midst  of  the  pressure  incident  to  active 
practice.  This  fact  may  serve  to  explain  and  excuse 
some  of  the  defects  which  less  interrupted  labor  might 
have  excluded. 

WILLIAM  W.  PORTER. 

July,  1891. 


306217 


TABLE  OF  CONTENTS. 


CHAPTER  I. 


DEFINITION  OF   A   BILL  OF   LADING-ITS   KIND,  CONTENTS,   PARTIES 

AND  OFFICES. 


§  1,  Definition  of  a  bill  of  lading. 
§  2.  What  are  not  bills  of  lading. 
§  3.  The  several  kinds  of  bills  of  lading 
§  4.  Contents  of  the  bill. 
§  5.  The  original  i^arties  to  the  bill. 
§  6.  By  whom  bills  may  be  given. 
§  7-10.  Who  are  common  carriers. 


§  11.  Bills  of  lading  contracts  for  di- 
minished liability. 

§  12.  The  consideration  paid  for  trans- 
portation— freight. 

§  13.  The  ofiaces  of  the  bill— a  receipt, 
a  contract  and  a  muniment  of  title. 


CHAPTER  II. 

>,  BILL  OF  LADING  IS  A  RECEIPT  AND  ITS  TERMS  MAY  BE  VARIED 
^   BY   PAROL    PROOF   AS   BETWEEN    THE   ORIGINAL    PARTIES,   AS    TO 

THE  DESCRIPTION  OF  THE  GOODS  AND  AS  TO  THEIR  WEIGHT  AND 

QUANTITY. 


§  14.  The  bill  is  a  receipt  and  its  reci- 
tals may  be  varied  by  parol  proof  as 
between  the  original  parties. 

§  15.  The  bill  is  not  conclusive  evidence 
of  delivery  to  the  carrier. 

§  1(3.  Illustrations  of  the  principle. 

§  17.  The  bill  is  prima  facie  evidence  of 
such  delivery. 

§  18.  Effect  of  a  bill  executed  before  re- 
ception of  the  goods. 

§  19.  Eflect  of  a  bill  receipting  for  goods 
improperly  described. 

§  20.  Misdescription  by  shipper  induc- 
ing less  degree  of  care. 

§  21.  Instances  of  misdescription. 

§  22.  Further  instances. 


§  23.  Misdescriptions   to   secure   lower 
rate  of  freight. 

§  24.  Misdescription  by  the  carrier. 

§  25.  Statement  of  weight  and  quantity 
only  prima  facie  evidence  of  amount. 

§  26.  Carrier  not  bound  by  the  state- 
ment of  quantity. 

§  27.  Illustrations  of  the  principle'. 

§  28.  Contrary  doctrine  in  Georgia. 

§  29.  Neither  the  shipper  nor  consignee 
bound  by  the  statement  of  quantity. 

§  30.  Effect  of  the  statement  of  quantity 

on  the  burden  of  proof. 
§  31.  "Quantity  guaranteed"  and  sim- 
ilar provisions. 
§  32.  Effect  of  the  qualification  "more 
or  less." 


VI 


TABLE   OF   CONTENTS. 


CHAPTER  III. 

A  BILL  OF  LADING  IS  A  RECEIPT,  Continued.— EFFECT  OF  THE  STATE- 
MENT OF  VALUE,  OF  THE  CLAUSE  "SAID  TO  CONTAIN,"  OF  STATE- 
MENT OF  THE  CONDITION  AT  TIME  OF  SHIPMENT. 


§  33.  Effect   of   the   statement   of    the 

value  of  the  goods. 
§  34.  Effect  of  knowledge  by  the  car- 
rier of  the  true  value. 
§  35.  Shipper  not  bound  to  state  value 

unless  asked. 
§  36.  Legislation  requiring  tlie  shipper 

to  state  value. 
§  37.  Shipper,    if    asked,    must    state 

value  truly. 
§  38.  Shipper   must    not   deceive    the 

carrier  as  to  value  by  the  manner  of 

shipping. 
§  39.  Illustrations  of  the  principle. 
§  40.  Further  illustrations. 
§  41.  The  question  of  fraud  may  be  for 

the  court  or  for  the  jury. 


§  42.  Effect  of  the  qualification  "said 
to  contain." 

§  43.  Effect  of  the  statement  "  received 
in  good  order  and  condition,"  gener- 
ally. 

§  44,  45.  Statement  refers  to  external 
or  apparent  condition. 

§  46.  The  reason  for  the  rule. 

§  47.  The  statement  of  condition  is  not 
conclusive. 

§  48.  Illustrations  of  the  principle. 

§  49.  The  statement  is  jyrima  facie  evi- 
dence of  the  condition  and  puts  onus 
on  the  carrier  to  disprove. 

§  50.  A  promise  to  deliver  in  good  con- 
dition implies  receipt  in  same. 

§  51,  52.  Effect  of  the  phrase  "appa- 
rent good  condition." 


CHAPTER  IV. 

EFFECT  OF  QUALIFYING  CLAUSES,   "CONTENTS  UNKNOWN," 
"WEIGHT  UNKNOWN,"  ETC. 


§  53.  "Quantity,  etc.,  unknown"  gene- 
ally. 

§  54.  "Contents  unknown,"  as  affect- 
ing the  description  of  goods. 

§  55.  "Contents  unknown,"  as  affect- 
ing the  statement  of  the  condition  of 
the  goods. 

§  56.  "  Contents  and  gauge  unknown." 


§  57.  "  Contents  and  value  unknown." 

§  58.  "Weight  unknown." 

§59.  "Contents  and  weight  un- 
known." 

§60.  "Quantity  and  quality  un- 
known." 

§  61,  62.  "Weight,  contents  and  value 
unknown." 


CHAPTER  V. 

A  BILL  OF  LADING  IS  A  CONTRACT— RULES  OF  CONSTRUCTION. 


§  63.  A  bill  of  lading  is  a  contract. 
§  64.  As  such  it  cannot  be  varied  in  its 

terms  by  parol  proof. 
§  65,  Nor  by  contemporaneoiis  verbal 

agreement. 


§66.  Verbal  agreement  is  not  merged 
where  terms  are  omitted  by  mistake 
from  the  bill. 

§  67.  Illustrations  of  the  principle. 

§  68.  Variations  of  the  rule. 


TABLE   OF    CONTENTS. 


Vll 


§  69,  70.  Parol  evidence  is  admissible 

to  explain  ambiguities. 
§  71.  Contract  is  to  be  gathered  from 

the  whole  instrument. 
§  72.  Modification  of  the  rule. 


§  73,  74.  Reference  to  charter  party. 

§  75,  76.  Written  prevail  over  printed 
provisions. 

§  77.  The  bill  is  to  be  construed  accord- 
ing to  the  intention  of  the  parties. 


CHAPTER  VI. 

FURTHER  RULES  FOR  CONSTRUING  THE  CONTRACT. 


§  78,  79,  80.  The  bill  construed  with 
reference  to  usage  and  custom. 

§  81.  Limitations  of  the  rule. 

§  82.  Terms  varied  by  custom  or  tech- 
nical meaning. 

§  83.  Usage  as  to  course  of  voyage. 


§  84.  Usage  in  conflict  with  positive 
law. 

§  85,  86.  The  bill  construed  with  refer- 
ence to  custom  as  to  stowage. 

§  87.  The  case  of  Lamb  v.  Parkman. 

§  88.  Custom  as  to  stowage  continued. 


CHAPTER  Vn. 

CONFLICT  OF  LAWS  IN  CONSTRUING  THE  BILL  OF  LADING. 


§  89.  The  general    rule  as  to  the  law 

that  governs  construction. 
§  90,  91.  Consideration  of  the  cases. 
§  92.  The  Iowa  authorities. 
§  93,  94.  Decisions  in  other  States. 


§  95.  Decisions  in  England. 

§  96.  Decision  by  U.  S.  Supreme  Court. 

§  97.  "  The  law  of  the  ship." 

§  98.  Divergent  opinions. 

§  99.  "  The  law  of  the  court." 


CHAPTER  VIII. 

THE  RIGHT  OF  CARRIERS  TO  LIMIT  THEIR  COMMON  LAW  LIABILITY. 


§  100.  The  law  in  England.  §  112.  Rule  in 

§  101.  Reduced  freight  a  good  consid-  §  113.  Rule  in 

eration  for  diminished  liability.  §  114.  Rule  in 

§  102.  Is  the  carrier  with  limited  lia-  §  115.  Rule  in 

bility  simply  a  bailee  for  hire  ?  §  116.  Rule  in 

§  103,  104.  Rule  as  to  the  right  to  limit  §  117.  Rule  in 

liability  as  laid  down  by  the  Federal  §  118.  Rule  in 

courts.    '  §  119.  Rule  in 

§  105.  Rule  in  Alabama.       ,  §  120.  Rule  in 

§  106.  Rule  in  Arkansas.  §  121.  Rule  in 

§  107.  Rule  in  California.                    .  §  122.  Rule  in 

§  108.  Rule  in  Colorado.  §  123.  Rule  in 

§  109.  Rule  in  Connecticut.  §  124.  Rule  in 

§  110.  Rule  in  Dakota.  §  125.  Rule  in 

§  111.  Rule  in  Delaware  and  Florida.  I  §  126.  Rule  in 


Georgia. 

Illinois. 

Indiana. 

Iowa. 

Kansas. 

Kentucky. 

Louisiana. 

Maine. 

Maryland. 

Massachusetts. 

Michigan. 

Minnesota. 

Mississippi. 

Missouri. 

Nebraska. 


Vlll 


TABLE   OF   CONTENTS. 


§  127.  Rule  in 
§  128.  Rule  in 
§  129.  Rule  in 
§  130.  Rule  in 
§  131.  Rule  in 
§  132.  Rule  in 
§  133.  Rule  in 
§  13-1.  Rule  in 


New  Hampshire. 
New  Mexico. 
New  York. 
New  Jersey. 
North  Carolina. 
Ohio. 

Pennsylvania. 
South  Carolina. 


§  135.  Rule  in  Tennessee. 

§  136.  Rule  in  Texas. 

§  137.  Rule  in  Vermont. 

§  138.  Rule  in  Virginia. 

§  139.  Rule  in  West  Virginia. 

§  140.  Rule  in  Wisconsin. 

§  141.  The  general  American  rule. 


CHAPTER  IX. 


LIMITATION  OF  LIABILITY  TO  A  SPECIFIC  SUM. 


§  142.  Limitation  of  liability  to  a  speci- 
fic amount  by  notice  and  advertise- 
ment. 

§  143.  Such  notice  is  obligatory  because 
intended  to  insure  good  faith. 

§  144.  Limitation  of  liability  to  a  speci- 
fic amount  by  the  terms  of  the  bill  of 
lading. 

§  145.  Benefit  of  the  limitation  to  car- 
riers other  than  the  one  giving  the 
bill. 


§  146.  ES'ect  of  the  limitation  where 
the  shipper  is  silent  as  to  the  real 
value. 

§  147.  ES'ect  of  limitation  where  several 
articles  are  included  in  one  package. 

§  148.  Construction  put  upon  limita- 
tion in  Alabama  case. 

§  149.  Limitation  does  not  relieve  from 
liability  for  negligence. 


CHAPTER  X. 


ACCEPTANCE  OF  THE  BILL  IS  ASSENT  TO  ITS  TERMS. 


§  150.  Acceptance  of  the  bill  by  the 

shipper  is  generally  held  to  be  an 

assent  to  its  terms. 
§  151.  Duty  of  the  shipper  to  read  the 

bill. 
§  152.  In  Massachusetts  assent   must 

be  proven. 
§  153.  So  also  in  Illinois. 


§  154.  Statutory  enactment  in  Dakota. 
§  155.  The  rule  in  Georgia,  Michigan, 

and  Maryland. 
§  156.  The  rule  in  Ohio. 
§  157.  Assent  is    not   presumed   as  to 

limitation  indorsed  on  the  bill. 
§  158.  Assent  is  presumed  where  the 

shipper  is  familiar  with  the  terms. 


CHAPTER  XL 

EXECUTION  OR  ACCEPTANCE  OF  THE  BILL  BY  AN  AGENT  OF  THE 
SHIPPER,  OR  OF  THE  CARRIER. 


159.  Authority  of  an  agent,  deliver- 
ing goods  to  the  carrier  to  bind  the 
shipper. 


§  160.  Knowledge  of  an  authorized 
agent  as  to  the  manner  of  shipping, 
is  the  knowledge  of  the  shipper. 


TABLE   OF   CONTENTS. 


IX 


§  161.  Rule  in  those  States  where  as- 
sent to  terms  must  be  shown. 

§  162.  Contract  made  by  an  agent  in 
his  own  name  benefits  the  real 
owner. 

§  163.  A  principal  must  adopt  his 
agent's  contract  as  a  whole. 

§  164.  Carrier  having  dealt  with  an 
agent  cannot  deny  such  agent's  au- 
thority. 

§  165.  Where  goods  are  shipped  by  a 
vendor  or  by  an  agent  of  the  con- 
signee. 

§  166.  Bill  executed  by  an  agent  of  the 
carrier. 


§  167.  Agent   not   authorized   to   sign 

bills  for  goods  not  actually  received 

and  such  bills  are  void. 
§  168.   Contrary  rule  obtains  in  certain 

courts. 
§  169.  Agent  of  the  carrier   must   be 

duly  authorized  to  sign  bills. 
§  170.  Who  are  authorized. 
§  171.  Who  are  not  authorized. 
§  172.   Instructions    to  carrier's  agent 

do  not  bind  the  shipper. 
§  173.  Effect  of  an  agent's  agreement 

to  make  immediate  delivery. 
§  174,175.  Limitationsof  agent's  power 

to  make  a  special  contract. 


CHAPTER  XII. 

BILL  OF  LADING  EXECUTED  BY  THE  MASTER  OF  A  VESSEL. 


§  176.  Authority  of  the  master  to  sign 
bills  of  lading. 

§  177.  Contract  must  be  within  the 
scope  of  the  master's  authority. 

§  178.  Secret  instructions  to  the  master 
do  not  bind  the  shipper. 

§  179.  Master  cannot  sign  bills  for 
lower  rate  of  freight  than  the  ship- 
owner contracted  for. 


§  180.  Master  has  no  authority  to  sign 
bills  for  goods  not  received. 

§  181.  Effect  of  custom  on  this  rule. 

§  182.  Authority  of  ship  broker  to  sign 
bills. 

§  183.  Personal  liability  of  the  master 
under  the  bill  of  lading. 


CHAPTER  XIII. 


EXCEPTIONS. 


EXPRESSIO  UNIUS  EST  EXCLUSIO  ALTERIUS— 
ACT  OF  GOD. 


§  184, 185.  Expressio  unius,  etc. 

§  186.  Expressio   unius,    etc.,  case   of 

Gage  V.  Tirrell. 
§  187.  Expressio   unius,   etc.,   general 

rule. 
§  188,189.  Act  of  God-Definitions. 
§  190,  191.  Act  of  God — Losses  within 

the  exception. 
§  192.  Act  of  God — Losses  not  within 

the  exception. 
§  193.  Act    of    God,    the     proximate 

cause. 


§  194.  Act  of  God  and  negligence  con- 
curring. 

§  195.  Amount  of  care  necessary. 

§  196.  Act  of  God  and  delay  concur- 
ring. 

§  197,  198.  Deviation  and  act  of  God 
concurring. 

§  199.  Consent  of  shipper  to  deviation. 

§  200.  Duty  to  protect  goods  after  dam- 
age by  act  of  God. 

§  201,  202.  Act  of  God— Inevitable  ac- 
cident. 


TABLE    OF    CONTENTS. 


CHAPTER  XIV. 

EXCEPTIONS,    Continued.— ACCIDENTS    OF     MACHINERY— BARRATRY- 
COLLISION. 


§  203,  204.  "  Accidents  of  machiDery," 
etc. 

§205.  "  Barratry,"  definition. 

§  206,  207,  208.  Acts  held  to  be  bar- 
ratrous. 

§  209.  Barratrous  acts  must  be  preju- 
dicial to  owner. 

§  210.  Master  who  is  also  owner  cannot 
commit  barratry. 


§  211.  Act  of  part-owner  may  be  bar- 
ratrous. 

§212,213.  "Collision;"  conditions 
under  which  it  may  arise. 

§  214.  Duty  to  protect  goods  after  col- 
lision. 

§  215.  Collision  not  presumptively  due 
to  negligence. 


CHAPTER  XV. 


EXCEPTIONS,  CoNTiNUED.- 
VICIOUSNESS- 


-DANGERS  OF  THE  ROAD— ESCAPES— 
-UNRULY  ANIMALS— FIRE. 


§  216.  "Dangers  of  roads,"  "Risk  of 
boats." 

§  217. ."  Escapes,  viciousness,  injuries 
to  unruly  animals." 

§  218.  "Escapes,"  etc.,  degree  of  care. 

§  219,  220.  Consent  of  the  owner  as  to 
manner  of  shipment  does  not  relieve 
from  consequences  of  negligence. 

§  221.  Carrier  is  bound  to  prevent  es- 
capes. 

§  222.  Carrier  is  not  liable  when  con- 
signee is  not  ready  to  receive  live 
stock. 

§  223.  "Fire,"  generally. 

§  224.  What  is  loss  by  fire. 


§  225.  To  fire  merely  an  incident  to 
other  loss,  the  exception  does  not 
apply. 

§  226.  Exception  does  not  relieve  for 
consequences  of  negligence. 

§  227.  Burden  of  proving  the  loss 
within  the  exception. 

§  228.  Doctrine  in  Ohio. 

§  229.  Rule  in  Federal  Courts. 

§  230.  Exceptions  to  be  strictly  inter- 
preted. 

§  231.  Exception  co-extensive  with  lia- 
bility. 

§  232,  233.  Legislation  aflTectiug  the 
exception  fire. 


CHAPTER  XVI. 

EXCEPTIONS,  Continued.— FREEZING— FROM  WHATEVER  CAUSE— HEAT 
—SUFFOCATION— FERMENTATION— INJURIOUS  EFFECTS  OF  OTHER 
GOODS— DANGEROUS  GOODS— INSUFFICIENT  STOWAGE-JETTISON. 


§234.  "Freezing." 
§  235.  Freezing  after  delay. 
§  236,  237.  Freezing    after    delay    by 
preceding  carrier. 


§  238.   "From  whatever  cause." 
§  239.  "  Goods  carried  on  deck  at  ship- 
per's risk." 


TABLE   OF   CONTENTS. 


XI 


§  240,  241.  "  Heat"— "  Suffocation"— 
"  Fermentation." 

§  242.  Heat,  etc.,  the  result  of  defect- 
ive stowage. 

§  243.  "  Injurious  effects  of  other 
goods" — "Dangerous  goods" — "  In- 
sufficient stowage." 


§  244.  Liability  nnder  the  clause 
"where  ship  is  under  charter- 
party." 

§  245,  246.  Illustrations  of  principles 
of  the  text. 

§247.  "  Jettison"— Definition. 

§  248.  Jettison — Effect  of  negligence. 

§  249,  250.  Liability  for  deck  load. 


CHAPTER  XVII. 

EXCEPTIONS,  Continued.— LEAKAGE  AND  BREAKAGE— LACK  OF  FOOD- 
LOADING  AND  UNLOADING— OBLITERATION  OF  MARKS— OWNER'S 
RISK. 


§  251.  "Leakage  and  breakage." 

§  252.  Leakage   and    breakage — Effect 

of  negligence. 
§  253.  Leakage  and  breakage — Burden 

of  proof. 
§  254.  "  Lack  of  food  and  water." 
§  255.  "Loading  or  unloading." 
§  256.  Loading  or  unloading — Obliga- 
tion to  furnish  suitable  cars. 
§  257.  Rule  in  England,  etc. 
§  258.  Construction  in  Michigan  court. 


§  259.  "  Obliteration  of  marks." 

§  2G0.  "Owner's  risk." 

§  261.  Owner's  risk — Negligence. 

§  262.  Owner's  risk — Effect  of  fraud  or 

misrepresentation . 
§  263.  Owner's  risk  in  carriage  of  live 

stock. 
§  264.  Construction   of    exception    by 

English  courts. 
§  265.  Legislation  in  England. 


CHAPTER  XVIII. 


EXCEPTIONS,  Continued.— PERILS  OF  THE  SEA. 


§  266.  "Perils  of  the  sea." 

§  267.  Perils  of  the  sea — Definition. 

§  268.  Perils  of  the  sea— Inland  navi- 
gation. 

§  269-270.  What  are  perils  of  the  sea. 

§  271.  Custom  affecting  the  interpreta- 
tion of  the  clause. 

§  272,  273,  274.  What  are  not  perils  of 
the  sea. 


§  275.  Perils  of  the  sea  and  negligence 

causing  loss. 
§  276.  Perils  of  the  sea  must  be  shown 

to  be  necessary  cause  of  loss. 
§  277.  Effect  of  clause  when  goods  are 

stowed  on  deck. 
§  278.  Duty  to  protect  the  goods  after 

damage  by  a  peril  of  the  sea. 


xn 


TABLE   OP   CONTENTS. 


CHAPTER  XIX. 

EXCEPTIONS,    Continued.— LOSS     OF    PERISHABLE     GOODS  — LOSS     BY 
INHERENT  DEFECT— BY   DETERIORATION— BY  DECAY. 


§  279.  Carriers  are  not  liable  for  loss 
wliich  is  the  result  of  the  "  inherent 
nature  of  the  goods"  shipped. 

§  280.  "Perishable  goods." 

§  281,  282.  "  Inherent  defect  —  Deteri- 
oration — Decay . ' ' 

§  283,  284.  Exception  does  not  relieve 
from  negligence. 


§  285.  Carrier's  duty  is  measured  by 

the  circumstances  of  each  case. 
§  286.  Master's  duty  to  open  packages. 
§  287.  Master's  duty  in  regard  to  the 

sale  of  injured  goods. 
§  288.  Master      should      communicate 

with  the  owners. 
§  289.  Right  of  a  carrier  by  land  to  sell 

perishable  goods. 


CHAPTER  XX. 

EXCEPTIONS,    Continued.— PIRATES    AND     ROVERS— PUBLIC    ENEMY- 
RATS  AND  VERMIN. 


§  290.  Loss  by  "  pirates,"  generally. 
§  291.  What  are  losses  by  pirates. 
§  292,  293.  Who  are  "  public  enemies." 
§  294.  What   are    not    losses    by   the 

public  enemy. 
§  295.  The  exception  does  not  relieve 

the   carrier   from  the  result   of  his 

negligence. 


§  296.  The  loss  might  be  the  proximate 

result  of  the  negligence. 
§  297.  Effect  of  declaration  of  war  upon 

the  carrier's  obligation. 
§298.  Loss  by  "  rats"  is  not  a  peril  of 

the  sea. 
§  299.  Loss  by  "  vermin"  is  not  a  peril 

of  the  sea. 


CHAPTER  XXI. 

EXCEPTIONS,    Continued.— RESTRAINT    RY    LEGAL    PROCEDURE  — 
RESTRAINT  OF  PRINCES— OF  PEOPLE. 


§  300  "  Restraint  by  legal  procedure," 
necessity  for  the  exception. 

§  301.  Obligations  of  the  carrier  when 
legal  seizure  is  made. 

§  302.  Opinion  in  the  case  of  Stiles  v, 
Davis. 

§  303.  Conflicting  decisions  in  Massa- 
chusetts. 

§304.  Definitions  of  exception  "re- 
straint of  princes." 


§  305.  Seizure  for  violation  of  custom 
laws  within  the  exception. 

§  306,  307,  308.  Embargo,  blockade,  and 
neutrality  edicts  generally  within 
the  exceptions. 

§  309.  Efl'ect  of  damage  by  delay  caused 
by  quarantine  regulations. 

§  310.  Restraint  of  princes  and  re- 
straint of  people  practically  synony- 
mous terms. 


TABLE   OF   CONTENTS. 


xin 


CHAPTER  XXII. 


EXCEPTIONS,  Continued.  — "RIOTS,  STRIKES,  AND  STOPPAGES  OF 
LABOR"— "RISK  OF  BOATS"— "  AT  SHIP'S  RISK"— "  ROBBERS  AND 
THIEVES"—"  RUST"—"  SWEAT." 


§311.  "Riots,  strikes,  and  stoppages 

of  labor,"  generally. 
§  312.  Exception  not  always  necessary 

to  be  inserted  in  the  bill. 
§  313.  Delay  caused  by  a  strike. 
§  314,  315.  Delay  caused  by  an  armed 

mob. 


§  316.  Decisions  of  Federal  Courts  in 

regard  to  strikes. 
§  317.  "Risk  of  boats." 
§  318.  "At  ship's  risk." 
§  319,  320.  "  Robbers  and  thieves." 
§  321.  "Rust." 
§  322.  "Sweat." 


CHAPTER  XXIII. 

BILLS  OF  LADING  FOR  THROUGH  CARRIAGE. 


§  323.  Carriers  may  contract  to  carry 

beyond  their  own  line. 
§  324.  Carriers  other  than  the  first,  are 

agents  of  the  latter. 
§  325.  The  first  carrier  continues  liable 

to  final  destination. 
§  326.  First  carrier  may,  by  contract, 

limit  his  liability  to  his  own  line,  ex- 
cept for  negligence. 
§  327.  Contract   to   carry   beyond   the 

carrier's  own  line  may  be  expressed 

or  implied. 
§  328.  The  receipt  of  goods  marked  to 

be    delivered  beyond   the   receiving 

carrier's  own  line. 
§  329.  Receipt  of  such  goods  by  one  of 

an  association  of  carriers. 
§  330.  General  statement  of  the  rule. 


§  331,  332.  What  have  been  held  to  be 
"through"  contracts. 

§  333.  Effect  of  contract  to  "  forward." 

§  334.  Duties  of  the  carrier  under  such 
a  bill. 

§  335.  Forwarder  must  follow  shipper's 
instructions. 

§  336.  In  the  absence  of  instructions, 
carrier  must  forward  by  usual  con- 
veyance. 

§  337.  Carrier  contracting  "  to  for- 
ward" is  liable  to  the  end  of  the 
route,  unless  otherwise  stipulated. 

§  338.  Carrier   cannot  escape  his  lia- 
bility  by   calling    himself    a   "  for- 
warder only." 
§  339,  340.  Liability  may,  by  contract, 

be  limited  to  carrier's  own  line. 
§  341.  The  rule  in  England. 


CHAPTER  XXIV. 

LIABILITY  OF  INTERMEDIATE  CARRIERS  UNDER  A 

OF  LADING. 


'THROUGH"  BILL 


§  342.  An  intermediate  carrier  must 
deliver  to  the  next  succeeding  car- 
rier. 

§  3^3.  The  carrier  in  possession  of  the 
goods  when  destroyed  is  liable  to  the 
shipper. 


§  344.  Such  a  carrier  may  show  in  de- 
fence the  misconduct  of  the  preceding 
carrier. 

§  345.  Effect  of  several  carriers  being 
associated  for  through  transporta- 
tion. 


XIV 


TABLE    OF   CONTENTS. 


§  346.  To  hold  final  carrier  for  injury 
to  goods  shipped  delivery  to  first 
carrier  in  good  condition  must  be 
shown. 

§  347.  Goods  shipped  in  good  condi- 
tion are  presumed  to  remain  so  until 
delivery  to  the  final  carrier. 


§  348,  349.  General  limitation  of  lia- 
bility in  the  bill  by  the  first  carrier 
enures  to  the  benefit  of  the  succeed- 
ing carriers. 

§  350.  Succeeding  carriers  are  not 
benefited  by  a  contract  made  by  the 
first  carrier  only  for  the  latter's 
behalf. 


CHAPTER  XXY. 

THE  CLAUSE  "PRIVILEGE  OF  RESHIPPING." 


§  351.  Effect  of  the  clause  "  privilege 

of  resphippiug." 
§  352.  "  Privilege  of  reshipping  in  case 

of  low  water." 


§  353.  The  privilege  must  be  exercised 
in  the  customary  way. 

§  354.  Eflfect  of  the  clause  on  the  sec- 
ond carrier's  lien  for  freight  charges. 


CHAPTER  XXVI. 

STIPULATIONS  AS  TO  DEMURRAGE,  ETC. 


§  355.  Stipulation  as  to  the  payment 

of  demurrage  in  the  bill. 
§  356.  Liability  for  demurrage  where 

the  bill  contains  no  such  clause. 


§  357.  Provision  in  a  charter-party  as 
to  demurrage. 

§  358.  Construction  of  the  phrases 
"  charges"  and  "  primage  and  aver- 
age accustomed." 


CHAPTER  XXVII. 

STIPULATIONS  AS  TO  PAYMENT  OF  FREIGHT. 


§  359.  Eflfect  of  stipulations  in  the  bill 
as  to  lien  for  "  freight." 

§  360.  The  clause  "  freight  charges 
paid  through"  does  not  deprive  last 
carrier  of  his  lien. 

§  361.  Lien  for  freight  is  lost  if  the 
goods  are  injured  by  the  carrier's 
negligence. 

§  362.  Goods  of  one  shipper  are  not 
liable  for  charges  on  the  goods  of 
another,  though  shipped  under  the 
same  bill. 

§  363.  Freight — person  to  whom  pay- 
able. 


§  364,  365,   366,   367,  368.    Freight  — 

person  by  whom  payable. 
§369.  "He    (the    consignee)    paying 

the  freight,"  and  similar  clauses. 
§  370.    "  Delivery    upon    payment    of 

freight." 
§  371.  Refusal   to  give  a   bill   unless 

freight  be  previously  paid. 
§  372.  Freight — amount  due. 
§373.  Freight    payable     upon     "net 

weight  delivered." 
§  374.  A   promise   to    pay   reasonable 

freight  is  implied  by  law. 
§  375.  Right  to  set  off  damages  against 

a  claim  for  freight. 


TABLE   OF   CONTENTS. 


XV 


§  376.  Freiglit  for  goods  delivered  short 

of  destination. 
§  377.  Freight  for  goods  underclassed 

by  shipper. 


§  378,  379.  Freight— when  due. 

§  380,  381.  Specific  stipulations  con- 
tained in  the  bill,  judiciallj  con- 
strued. 


CHAPTER  XXVIII. 


STIPULATIONS   RELATING  TO  DELIVERY-GOODS   SHIPPED  C.  0.  D.- 
CLAIM  FOR  LOSS  WITHIN  LIMITED  TIME. 


§  382,  383,  384,  385.  Carrier's  duty 
under  bill  for  goods  shipped  "  C. 
O.  D." 

§  386,  387,  388.  Claim  for  loss  to  be 
made  within  a  limited  time. 

§  389.  Effect  of  notice  on  the  back  of 
the  carrier's  receipt. 

.§390.  Claim  to  be  made  before  re- 
moval. , 


§  391 .  Claim  to  be  made  at  a  particular 
office. 

§  392.  Claim   for  non-delivery   is    not 
covered  by  "  loss  or  damage." 

§  393.  Claim  to  be  made  in  thirty  days 
held  to  be  reasonable  limitation. 

§  394.  Consideration  of  the  clause  lim- 
iting time  for  claim  in  England. 

§  395,  396.  Consideration  of  clauses  of 
similar  import. 


CHAPTER  XXIX. 


THE  BILL  IN  ITS  RELATION  TO  THE  DELIVERY  OF  GOODS  TO  THE 

CONSIGNEE. 


§  397.  Surrender  of  the  bill  before  de- 
livery of  the  goods. 

§  398,  399.  Effect  of  custom  on  the  de- 
livery of  the  goods. 

§  400,  401,  402,  403,  404,  405,  406. 
Wharf  delivery  by  a  vessel. 

§  407,  408,  409.  Wrong  delivery  by  a 
vessel. 


§  410.  Delivery  by  a  carrier  on  land. 

§  411.  Place  of  delivery. 

§  412.  Time  of  delivery. 

§  413.  Acceptance  by  the  consignee. 

§  414.  The  person  to  whom  delivery  is 

to  be  made. 
§  415.  Effect  of   marks   on   the   goods 

upon  the  stipulations  in  the  bill. 


CHAPTER  XXX. 


THE  BILL  OF  LADING  -A  MUMMENT  OF  TITLE-A  SYMBOL  OF  THE 
GOODS-A  MEANS  OF  TRANSFERRING  TITLE. 

§  416.  A  bill  of  lading  is  a  muniment  1  §  418.  Bill  is  evidence  of  an  insurable 
,  ,.,1  interest  in  the  cargo  in  prize  courts 

01  title. 
6  417.  Bill  is  a  svmbol  or  representa-        in  England. 

tive  of  the  goods.  1  §  419.  And  in  American  prize  courts. 


XVI 


TABLE    OF   CONTEXTS. 


§  420.  Delirery  of  the  bill  is  a  suf- 
ficient delivery  of  the  goods  within 
the  Statute  of  Frauds. 

§  421.  Bill  of  lading  is  a  means  of  trans- 
ferring title. 

§  422.  Right  of  a  vendee  to  demand  a 
hill  of  lading. 

§  423.  Vendee  is  not  entitled  to  all 
existing  copies  of  the  bill  of  lading. 


§  424,  425.  Duration  of  bill  of  lading's 
availability  as  a  symbol. 

§  426.  Duration  •where  there  is  con- 
tinuous carriage  on  several  connect- 
ing lines. 

§  427.  Holder  of  the  bill  of  lading  is 
not  hound  to  give  notice  of  his  title. 


BILLS  OF  LADING  IJ 


CHAPTER  XXXI. 

?UED  BY  CARRIERS  WITHOUT  RECEIVING 
THE  GOODS. 


§  428,  429.  Carrier  is  not  liable  on  such 

an    unauthorized    issuance    by   his 

agent.     Grant  v.  Norway. 
§  430.  Effect  of    the   English   Bills  of 

Lading  Act. 
§  431.  Issuance  of  second  bill  for  goods 

received. 
§  432.  American  cases.     The  Schooner 

Freeman  v.  Buckingham. 
§  433.  The  rule  applies  to  bills  issued 

by  shipping  agents. 


§  434.  The  contrary  rule  prevails  in 
some  jurisdictions — New  York,  Kan- 
sas, Nebraska. 

§  435.  Statutes  providing  that  bills  of 
lading  shall  be  conclusive  evidence 
of  the  receipt  of  the  goods. 

§  436.  The  bill  gives  title  to  goods  re- 
ceived subsequently  to  its  issuance. 

§  437.  The  rule  is  not  affected  by 
statutes  prohibiting  the  issuance  of 
the  bill  without  the  receipt  of  the 
goods. 


CHAPTER  XXXn. 

THE  NEGOTIABILITY  OF  THE  BILL  OF  LADING. 


§  43S.  The  bill  is  not  "  negotiable"  in 
the  ordinary  sense  of  that  term. 

§  439,  440,  441,  442.  The  nature  of  the 
interest  or  title  of  which  the  bill  is 
a  muniment. 

§  443,  444,  445,  446,  447,  448,  449,  450, 
451.  Statutes  relating  to  the  negotia- 
bility of  bills. 


§  452,   453,  454.  The   construction   of 

statutes  relating  to  the  negotiability 

of  the  bill. 
§  455,  456,  457,  458,  459.    Rights  of 

holders  of  diflferent  parts  of  a  bill 

issued  in  sets. 


TABLE   OF   CONTENTS. 


XVll 


CHAPTER 

THE  BILL  OF  LADING  IS  A  MUNIMENT  OF  NO  TITLE  AS  AGAINST  THE 
TRUE  OWNER,  WHEN  THE  PARTY  ISSUING  OR  TRANSFERRING  IT 
HAS  NO  TITLE  OR  AUTHORITY. 


§  460,  461,  462, 463.  The  general  prin- 
ciple. 

§  464.  The  question  considered  as  one 
of  bailment.  The  carrier  may  be 
compelled  to  disregard  his  bailor's 
title  and  recognize  that  of  the  true 
owner. 

§  465,  466.  Want  of  notice  to  the  car- 
rier by  the  true  owner  does  not  vali- 
date the  bill-holder's  title. 


§  467,  468.  The  manner  in  which  the 
carrier's  bailor  obtained  possession 
of  the  goods,  whether  fraudulently 
or  in  good  faith  is  immaterial. 

§  469.  Unauthorized  delivery  by  an 
agent  confers  no  title. 

§  470.  Exception  where  apparent  own- 
ership is  intended. 


CHAPTER  XXXIV. 


THE   BILL   OF   LADING  AS  A  MUNIMENT   OR  AS  EVIDENCE   OF   TITLE 
IN  A  CONSIGNEE. 


§  471,  472,  473,  474.  The  bill  is  prima 
facie  evidence  of  the  consignee's  title. 
§  475.  The  consignee  is  the  prima  facie 
owner,  though  the  carrier  be  paid  by 
the  consignor. 
§  476.  The  consignor's  property  is  suf- 
ficient to  enable  him  to  maintain  an 
action   for   a   failure   or    refusal    to 
deliver  the  goods. 
§  477.  The  consignee  may  sue  without 
delivery  of  the  bill,  when  the  con- 
signor releases  his  title. 
§  478.  Or  upon   the  re-indorsement  of 

the  bill. 
§  479,  480,  481.    The   consignment   is 
not  conclusive  evidence  of  a  title  in 
the  consignee. 


§  482,  483.  Making  goods  deliverable 
to  the  vendor's  order  is  prima  facie 
evidence  of  instruction  to  reserve  the 
jus  disponendi. 

§  484.  ]\Iakiug  goods  deliverable  to  the 
vendor's  agent  has  the  same  effect. 

§  485,486.  The  presumption  is  strength- 
ened when  the  bill  is  pledged  to 
secure  a  draft  against  the  goods, 
but  it  is  not  conclusive. 

§  487,  488.  Shipment  in  the  vendee's 
vessel  does  not  conclusively  rebut 
presumption  of  the  reserved  control. 
§  489,  490.  The  reservation  of  the  jus 
disponendi  is  a  question  of  intention. 
§  491,  492.  Where  the  consignee  is  the 
consignor's  factor. 


CHAPTER  XXXV. 

THE  TRANSFER  OF  THE  BILL. 


§  493.  The  bill  is  transferable  by  in- 
dorsement and  delivery. 

§  494.  Title  may  be  passed   by  other 
modes  of  assignment. 
B 


§495.  When  the  carrier  need  require 
no  indorsement  to  warrant  a  delivery. 

§  496,  497.  Title  may  be  transferred  by 
the  delivery  of  the  bill  unindorsed. 


XVlll 


TABLE   OF   CONTENTS. 


The    same — English  |      goods.     When    the    intention    is   a 

question  for  the  jury. 
§  504,  505,  506,  507.  Delivery  of  a  bill 

containing  no  words  of  negotiability. 
§  508.  The  eflfect  of   a  transfer  varies 

with  the  instruction. 


§  498,  499,  500 

authorities. 
§  501.  The  same — German  code. 
§  502,  503.  The  delivery  must  be  with 

an  intent   to   pass  property  in  the 


CHAPTER  XXXVI, 


THE  BILL  OF  LADING  AS  COLLATERAL  SECURITY. 


§  509,  510.  Character  of  the  pledgee's 
title. 

§  511.  Pledgee  has  such  property  as 
will  enable  him  to  maintain  re- 
plevin. 

§  512.  Pledgee's  title  is  paramount  to 
the  right  of  stoppage  in  transitu. 

§  513.  No  title  passes  unless  the  bill 
be  delivered. 

§  514,  515.  Forwarding  a  bill  attached 
to  a  draft  for  the  price  of  goods  is  not 
necessarily  a  delivery  to  the  party 
discounting  the  draft. 

§  516,  517.  Pledgee's  rights  are  para- 
mount to  those  of  the  consignee. 

§  518.  Pledgee's  rights  are  paramount 
to  those  of  a  consignee  to  whom  the 
consignor  is  indebted  beyond  the 
value  of  the  goods. 

§  519.  Agreements  between  a  con- 
signor and  a  consignee  that  the  ship- 
ment shall  be  appropriated  to  the 
payment  of  the  former's  debts  are 
immaterial. 

§  520.  Consignee's  ignorance  of  the 
pledge  is  immaterial. 


§  521.  Pledgee's  title  is  conditional. 

§  522.  The  same — whether  the  trans- 
action is  a  mortgage  or  a  pledge  is 
immaterial. 

§  523,524.  The  pledgee's  title  defaulted 
by  acceptance  rather  than  payment 
of  draft. 

§  525,  526.  The  rule  holds  where  the 
draft  has  been  sent  to  an  agent  for 
collection. 

§  527.  The  bill  may  be  made  security 
for  the  payment  by  express  agree- 
ment. 

§  528.  Consignee  cannot  claim  posses- 
sion until  he  accepts  or  pays  the  draft, 

§  529.  Pledgee  is  liable  in  damages  for 
refusal  to  deliver  upon  the  con- 
signee's acceptance  or  payment  of 
the  draft. 

§  530,  Pledgee's  right  is  not  divested 
by  the  consignee's  obtaining  posses- 
sion of  the  goods  without  acceptance 
or  payment  of  the  draft, 

§  531.  Nor  by  the  consignee's  own  de- 
livery of  the  goods  where  in  trust  for 
redemption  of  pledge. 


CHAPTER  XXXYII. 

THE  BILL-HOLDER'S  TITLE  AND  THE  RIGHT  OF  STOPPAGE  IN 
TRANSITU. 

§  532,  The  right  is  general,  j  §  534.  The  bill-holder's  title  is  not  ne- 

§  533.  The  right  is  defeated  by  a  trans-         cessarily  invalidated  by  the  fraud  of 

fer  of  the  bill  of  lading  for  value  to  j      the  original  vendee. 

a  bona  Jide  transferree.  I 


TABLE   OF   CONTENTS. 


XIX 


§  535.  The  bill  must  have  been  ob- 
tained in  faith  of  an  apparent  title. 

§  536.  Right  of  stoppage  is  not  defeated 
where  the  transfer  is  fraudulent. 

§  537.  Transferree's  knowledge  ofthe 
vendee's  insolvency,  or  that  the 
goods  were  not  paid  for. 

§  538.  The  consideration  for  the  trans- 
fer— what  bill-holders  may  defeat 
the  right. 

§  539.  The  same.     Antecedent  debts. 

§  540,  541.  The  same.  Contempora- 
neousness of  the  transfer. 

§  542.  The  same.  Transfer  as  collate- 
ral for  an  antecedent  debt. 

§  543.  The  same.  Forbearance  to  sue, 
etc. 


§  544.  The  bill-holder  has  only  such 
an  interest  as  will  protect  his  ad- 
vances. Consignor's  right  to  the  sur- 
plus. 

§545.  The  same.  Sub-sales—  sales  of 
goods  "  to  arrive,"  etc. 

§  546.  The  same.  Additional  securi- 
ties of  the  vendee  must  be  first  ap- 
propriated to  the  pledgee's  claim. 

§  547.  The  right  of  stoppage  is  not 
defeated  unless  the  bill  is  trans- 
ferred. 

§  548.  Notice  of  stoppage  to  the  carrier 
after  the  vendee's  transfer  of  the 
bill. 


CHAPTER  XXXVIII. 

THE  UNIFORM  BILL  OF  LADING-ITS  GROWTH  AND  ADOPTION. 


§  549.  The  growth  of  the  uniform  bill. 
§  550,  551.  The  originators  of  the  uni- 
form bill. 


§  552.  The  benefits   resulting   from   a 

uniform  bill. 
§  553.  Form  of  the  uniform  bill. 


BILLS  OF  LADING. 


CHAPTER  I. 

DEFINITION  OF  A  BILL  OF  LADING-ITS  KINDS,  CONTENTS, 
PARTIES,  AND  OFFICES. 


Definition  of  a  bill  of  lading,  §  1. 
What  are  not  bills  of  lading,  §  2. 
The  several  kinds  of  bills  of  lading,  §  3. 
Contents  of  the  bill,  §  4. 
The  original  parties  to  the  bill,  §  5. 
By  whom  bills  may  be  given,  §  6. 
"Who  are  common  carriers,  §§  7-10. 


Bills  of  lading  contracts  for  diminished 
liability,  §  11. 

The  consideration  paid  for  transporta- 
tion— freight,  §  12. 

The  offices  of  the  bill— a  receipt,  a 
contract,  and  a  muniment  of  title, 
§13. 


§  1.  A  BILL  of  lading  is  a  written  acknowledgment  by  a 
carrier  of  the  receipt  of  certain  goods  and  an  agreement  for  a 
consideration  to  transport  and  to  deliver  the  same  at  a  specified 
place  to  a  person  therein  named  or  to  his  order.  It  is,  during 
the  transportation,  the  representative  ol"  the  goods,  and  by  its 
assignment,  or  indorsement  and  delivery,  title  to  the  goods  may 
be  transferred. 

The  instrument  has  been  judicially  defined.  Mr.  Justice 
Cliftbrd  says,  in  "The  Delaware,"'  that  a  bill  of  lading  is 
"  A  written  acknowledgment  signed  by  the  master  that  he  has 
received  the  goods  therein  described  from  the  shipper,  to  be 
transported  on  the  terms  therein  expressed  to  the  described 
place  of  destination  and  there  to  be  delivered  to  the  consignee 
or  parties  therein  designated." 

In  Cope  V.  Cordova,^  Mr.  Justice  Rogers  says  that  a  bill  of  lad- 
ing is  "A  formal  acknowledgment  of  the  receipt  of  goods  and 
an  engagement  to  deliver  them  to  the  consignee  or  his  assigns." 

Again,  Mr.  Justice  Stockton  in  Merchant's,  etc.,  Bank  v. 


'  14  Wallace,  579. 
1 


2  1  Rawle  (Pa.),  202. 
1 


§  4.]  BILLS   OF   LADING.  [CHAP.  I. 

Hewitt,^  says:  "A  bill  of  lading  is  the  contract  of  the  master 
of  a  vessel  to  deliver  the  property  to  the  person  to  whom  the 
consignor  or  shippers  shall  order  the  delivery." 

The  Indian  Stamp  Act  1,  of  1879,  §  3,  cl.  3,  thus  defines  a 
bill  of  lading:  "Bill  of  lading  means  any  instrument  signed  by 
the  owner  of  a  vessel  or  his  agent,  acknowledging  the  receipt 
of  goods  therein  described  and  undertaking  to  deliver  the  same 
at  a  place  and  to  a  person  therein  mentioned  or  indicated. "^ 

§  2.  From  the  definition  it  is  clear  that  an  account  for  freight, 
usually  called  a  freight  bill,  is  not  a  bill  of  lading  ;3  nor  is  a  way 
bill  since  it  is  altogether  ex  pa7'te  and  is  not  a  contract  •*  nor 
is  a  dray  ticket  f  nor  is  a  paper,  signed  only  by  the  consignor, 
stating  the  shipment  and  entrusted  to  the  master  of  the  vessel.* 

§  3.  Bills  of  lading  were  originally  of  two  kinds:  those 
issued  for  the  transportation  of  goods  by  water,  and  those 
issued  for  the  transportation  of  goods  by  land.  The  former  are 
termed  "bills  of  lading"  generally  or  "foreign  bills,"  while  to 
the  latter  the  term  "  inland  bills"  is  often  applied.  Since  the 
development  of  transportation,  however,  a  bill  is  now  frequently 
issued  to  cover  both  water  and  rail  carriage. 

A  "clean"  bill  of  lading  is  one  issued  for  the  transportation 
of  goods  by  water,  which  is  silent  as  to  the  mode  of  stowing 
the  goods.  A  "clean"  bill  imports  that  the  goods  are  to  be 
safely  and  properly  stowed  under  deck.^ 

§  4.  The  instrument  ordinarily  contains  the  name  of  the 
place  and  the  date  of  the  shipment;  a  description  of  the  kind, 

'  3  Iowa,  93.  ^  Coosa  River  Stm.  Co.  v.  Barclay, 

2  A  "shipping  note,"  as  it  is  called,  30  Ala.  120;   Dows  v.  Rush,  28  Barb. 

for  goods  shipped  by  rail,  is  a  bill  of  (N.    Y.)    157;    Dows  v.  Greene,   24 

lading  within  the  meaning  of  the  statute  N.  Y.  638. 

referring  to  bills  of  lading,  as  is  plainly  ■•  Peixotti  v.  McLaughlin,  1   Strob. 

imported  by  the  words  "or  train"  in  468. 

the  statute.     Royal  Canadian  Bank  v.  ^  Fleming  v.  Mills,  5  Mich.  420. 

Grand  Trunk  Ry.  Co.,  23  U.  C.  C.  P.  «  Covill  v.  Hill  et  al.,  4  Denio  (N. 

Rep.  225.  Y.),  323  ;  Gage  v.  Jaqueth,  1  Lansing 
"  Connaissement"  means  "bill  of  (N.Y.),  207  ;  Wolf  y.  Meyers,  3  Sand- 
lading."    Stearine  Co.  v.  Heintzmann,  ford,  7. 

11   L.  T.  X.  S.  272;   17  C.  B.  N.  S.  '  The  Delaware,  14  Wallace,  579; 

5G  ;  10  Jur.  N.  S.  881.  Creeryv.  Holly,  14  Wend.  (N.  Y.)  26. 
9 


CHAP.  I.]  DEFINITION    OF   A    BILL    OF   LADING.  [§  7. 

quantity,  quality,  and  condition  of  the  goods  ;  the  names  of  the 
shipi^er,  transporter,  and  person  to  whom  the  goods  are  sent ; 
the  name  of  the  place  of  destination  and,  generally,  the  terms 
upon  which  the  transportation  is  to  be  made. 

Accuracy  in  stating  the  place  and  date  of  shipment,  the 
place  of  delivery,  and  the  person  to  whom  the  goods  are  to  be 
delivered,  and  the  premium  to  be  })aid  for  transportation,  is 
desirable  in  a  bill  of  lading  to  prevent  dispute  and  misunder- 
standina:.  For  a  similar  reason  a  clear  statement  of  the  nature, 
value,  quantity  and  quality  of  the  goods  shipped  is  necessary. 
So  needful  is  this  regarded  that  some  of  the  States'  have  taken 
legislative  action  compelling  the  insertion  of  such  a  description 
of  the  goods. 

§  5.  The  original  parties  to  the  bill  are  three  in  number :  the 
shipper  or  consignor,  who  presents  the  goods  for  transporta- 
tion ;  the  consignee  or  he  to  whom,  or  to  whose  order,  the  goods 
are  to  be  delivered  and  the  carrier  or  he  to  whom  the  goods 
are  entrusted  for  transportation  and  delivery. 

The  bill  must  be  signed  by  or  on  behalf  of  the  party  under- 
taking the  carriage,  but  need  not  be,  and  generally  is  not,  signed 
by  the  party  shipping.  The  mere  acceptance  of  the  bill  by  the 
latter  is  in  most  States,  evidence  of  an  agreement  to  its  terms. 

§  6.  The  bill  of  lading  may  be  issued  by  an  individual  or  a 
corporation,  for  transportation  to  be  made  without  or  with 
compensation.  There  is  a  fundamental  difference  between  gra- 
tuitous carriers  and  carriers  for  hire  as  to  the  degree  of  their 
responsibility.  The  former  are  compelled  only  to  exercise  such 
care  and  diligence  in  regard  to  the  goods  transported  as  are 
bestowed  by  an  ordinarily  careful  man  in  the  management  of 
his  own  business  and  property.  The  latter,  known  as  common 
carriers  are,  as  we  shall  see,  subject  to  more  serious  obligations. 
It  is  upon  bills  issued  by  common  carriers  that  the  questions 
hereafter  to  be  discussed  have  generally  arisen. 

§  7.  Common  carriers  are  individuals  or  corporations  who 
undertake  for  hire  to  transport  from  place  to  place  the  goods 
of  all  such  persons  as  choose  to  employ  them. 

1  Maine,  Massachusetts,  and  other  Rev.  Sts.  1850,  C.  35;  Mass.  St.  1818, 
States.     See  Maine  St.  of  1821,  C.  14     C.  122  ;  Gen.  Sts.  1860,  C.  52. 

3 


\ 


§  8.]  BILLS    OF   LADING.  [CHAP.  I. 

Thus,  railroad  companies  are  common  carriers  and  are  subject 
to  all  the  liabilities  of  such  carriers.^  Railways  which  take  a 
car  for  transportation  over  their  road  and  assume  the  sole 
possession  and  care  of  it,  although  it  remain  on  their  own 
tracks,  are  responsible  as  common  carriers.'*  A  railroad  com- 
pany agreeing  with  a  party  to  furnish  motive  power  to  draw 
his  cars  loaded  with  his  coal  over  its  road,  he  to  furnish  brake- 
men  to  be  under  the  control  of  the  company's  conductor,  and 
also  to  load  and  unload  the  cars  assumed  as  to  such  cars,  the 
liabilities  of  a  common  carrier.^ 

The  charter  of  the  Michigan  Central  R.  R.  Co.,  being  in 
the  nature  of  a  contract  with  the  State  that  the  company  shall 
become  and  remain  a  common  carrier  as  at  common  law,  its 
liability  as  such  becomes  irrevocably  fixed  and  cannot  be  modi- 
fied by  any  contract.* 

§  8.  A  private  arrangement  between  a  railroad  company  and 
an  express  company  for  the  transportation  of  light  freight  will 
not  relieve  the  former  from  liability  as  a  common  carrier  for 
packages  received  on  the  cars  from  persons  having  no  notice  of 
the  arrangement.  It  is  immaterial  whether  the  article  was 
given  at  the  cars  to  the  agent  of  the  express  company,  or  to 
a  baggage  master  or  other  agent  of  the  railroad  company.' 
Express  companies,  being  engaged  in  transporting  not  only 
small  packages  and  articles  of  value  but  also  of  merchandise 
and  the  great  staples  and  products  of  the  country,  are  common 
carriers  and  subject  to  their  liabilities.® 

*  Southwestern  Ry.  v.  Webb,  48  ^  Langwortliy  v.  N.  Y.  &  H.  R.  R. 
Ala.  585;  M.  &  G.  R.  R.'  Co.  v.  Co.,  2  E.  D.  Smith  (N.  Y.),  195. 
Prewitt,  46  Ala.  63 ;  I.  C.  R.  R.  Co.  ^  Southern  Ex.  Co.  v.  Crook,  44 
V.  Frankenberg,  54  111.  88 ;  Dibble  Ala.  468  ;  Southern  Ex.  Co.  v.  Hess, 
V.  Brown,  12  Ga.  217;  Constitution  53  Ala.  19;  Southern  Ex.  Co.  v. 
State  of  Penna.,  Art.  XVII.,  sect.  1  ;  Newby,  36  Ga.  635  ;  Belger  v.  Dins- 
Selma  &  Meridian  R.  R.  v.  Butts,  43  more,  51  N.  Y.  166;  American  Ex. 
Ala.  385.  Co.  v.  Haggard,  37  111.  465;    Lands- 

*  New  Jersey  R.  R.  Co.  v.  Penna.  berg  v.  Dinsmore,  4  Daly  (N.  Y.  C. 
R.  R.  Co.,  3  Dutcher,  100.  P.),  490;  Gulliver  v.  Adams  Ex.  Co., 

3  Mallory  v.  Tioga  R.   R.   Co.,  39     38    111.    503 ;     Southern    Ex.    Co.    v. 
Barb.  488.  Thornton,  41  Miss.  216. 

*  M.  C.  R.  R.  Co.  V.  Ward,  2  Mich. 
588. 

4 


CHAP.  I.]  DEFINITION   OF   A   BILL    OF   LADING.  [§  9. 

An  express  company  whose  business  is — and  is  represented  by 
them  to  the  public  to  be — to  receive,  convey  and  deliver  coin, 
bullion,  commercial  paper,  bank  bills  and  goods  for  such  as 
choose  to  employ  them  for  a  compensation,  are  common  car- 
riers.^ That  they  are  not  the  owners  of  the  conveyance  they 
employ  in  the  conduct  of  their  business,  does  not  affect  the 
legal  character  of  the  business.^  An  express  company  making 
a  contract  for  the  transportation  of  goods  from  New  York  to 
Louisville,  though  the  receipt  say  "to  be  forwarded,"  is  a 
common  carrier  and  not  a  mere  forwarder,  though  it  employs 
the  conveyance  of  third  parties  only  in  the  performance  of  its 
contract.^ 

A  messenger  employed  by  an  express  company  is  not,  as 
between  him  and  the  company,  a  common  carrier.  The  express 
company  is  the  common  carrier.  The  messenger  is  only  liable 
to  it  under  his  contract  with  it  as  agent.'* 

§  9.  Transportation  companies,  receiving  goods  for  transpor- 
tation, are  common  carriers  and  as  such  are  liable  as  insurers.' 
Draymen,  cartmen  and  porters,  who  undertake  to  carry  goods 
for  hire  as  a  common  employment  from  one  part  of  a  town  to 
another,  come  within  the  definition  of  a  common  carrier.  So 
does  the  driver  of  a  slide  with  an  ox-team.  The  mode  of  trans- 
porting is  immaterial.^ 

The  owner  of  a  wagon  train,  who  sends  his  train  to  convey 
goods  for  any  who  may  employ  him  and  undertakes  to  carry 
the  goods  of  a  certain  party  without  any  special  agreement, 
assumes  the  liability  of  a  common  carrier.^  Where  a  planter, 
employing  his  wagons  in  hauling  his  cotton  crop  to  market  and 
habitually  lading  them  on  their  return  with  goods  to  be  trans- 
ported for  hire,  receives  such  goods  and  executes  his  receipt 
therefor,  undertaking  to  deliver  them  at  the  customary  rate  of 

•  Sherman  v.  Wells,  28  Barbour  C.  &  A.  R.  &  Trans.  Co.  v.  Burke, 
(N.  Y.),  403.  13  Wend.  (N.  Y.)  611 ;   Spears  v.  L. 

2  Russell  I'.  Livingston,  19  Barbour,  S.  &  M.  S.  R.  R.  Co.,  67  Barbour 

346.  (N.  Y.),  513  ;   Stephens  &  C.  T.  Co. 

»  Read  v.  Spaulding,  5  Bosw.  395  v.  Tuckerman,  4  Vroom  (N.  J.),  543. 
(Supr.  Ct.  N.  Y.).  6  Robertson   v.    Kennedy,   2   Dana 

*  Southern   Ex.    Co.   v.   Frink,   67  (Ky.),  430. 

Ga.  201.  '  Seligman  y.  Armijo,  1  New  Mex- 

5  M.  D.  T.  Co.  V.  Kahn,  76  111.  520;     ico,  459. 

5 


I  10,]  BILLS    OF   LADING.  [CHAP.  I. 

charo;es,  he  will  be  responsible  as  a  common  carrier.^  Steam- 
ship companies  are  common  carriers,^  as  are  also  companies 
using  steamboats  and  railroads  to  transport  passengers  and 
baggage.3  The  owners  of  steamboats  engaged  in  the  carrying 
trade  on  navigable  rivers,  are  common  carriers  bound  by  the 
common  law  rule.*  Ship  owners,  in  a  contract  by  a  bill  of 
ladino-  for  the  transportation  of  merchandise,  take  upon  them- 
selves the  responsibilities  of  common  carriers.^  Canal  companies 
are  common  carriers,* 

§  10.  One  not  in  business  as  a  common  carrier,  but  owning  a 
canal  boat  for  his  own  use,  applied  to  a  common  carrier,  who 
knew  these  facts,  and  was  employed  by' the  latter  to  carry  a 
load  of  freight.  The  former  was  held  not  to  be  liable  as  a 
common  carrier,  although  his  employer  had  contracted  as  a 
common  carrier  and  he  knew  it.  His  liability  was  determined 
by  the  business  in  which  he  was  engaged  and  the  character  of 
his  own,  not  his  employer's,  employment.^  Ferrymen  are  com- 
mon carriers  and  liable  as  such.^  Proprietors  of  stage  wagons, 
coaches  and  omnibuses  are  common  carriers."  One  who,  for 
hire,  carries  passengers  and  baggage  alone  for  all  who  choose 
to  employ  him,  to  and  from  depots,  hotels,  etc.,  is  a  common 
q^rrier  of  goods  and  liable  for  all  losses  but  the  inevitable.^" 
A  city  express  company  engaged  in  carrying  parcels  between 
the  cities  of  Kew  York  and  Brooklyn  and  to  and  from  various 
railroad  depots,  is  a  common  carrier." 

>  Harrison     v.     Roy,     10     George  ^  Fish  v.  Clark,  49  N.  Y.  122. 

(Miss.),  396.  ^  Harvey  v.  Rose,  26  Ark.  3  ;   San- 

2  Fowler  v.  L.  &  G.  W.  Stm.  Co.,  ders  v.  Youncr,  i  Head  (Tcnn.),  219; 
23  Hun  (N.  Y.),  196.  Hall   v.    Renlro,   3  Mete.   (Ky.)  51  ; 

3  C.  &  A.  R.  &  Trans.  Co.  v.  Burke,  Po.well  v.  Mills,  8  George  (Miss.),  691. 
1.3  Wend.  (N.  Y.)  611.  '  Story  on  Bailments,  496  and  cases 

*  Gilmore  v.  Carman,  1  Sm.  &  M.  cited;  Dibble  v.  Brown,  12  Ga.  217; 
(Miss.)  279;  Gordon  v.  Buchanan,  5  HoUister  v.  Nowlen,  19  Wend.  (N. 
Yerger  (Tenn.),  71;  Porterfield  ?;.  Y.)  234  ;  Philleo  «.  Sanford,  17  Texas, 
Humphreys,  8  Humphreys  (Tenn.),  227;  but  see  Powell  v.  Mills,  1 
497;  Allen  v.  Sewall,  2  Wend.  (N.  George  (Miss.),  231;  Miss.  C.  R.  R. 
Y.)  327;  Witbeck  v.  Schuyler,  44  Co.  v.  Kennedy,  41  Miss.  671. 
Barb.  (N.  Y.)  469.  '"  Parmelee  t;.  Lowitz,  74111.  116. 

«  The   Delaware,    14    Wall.    579 ;         "  Richards   v.   Westcott,   2   Bosw. 
Merrill  v.  Grinnell,  SO  (N.  Y.)  594.        (N.  Y.  Supr.  Ct.)  589. 

*  Constitution  of  the  State  of  Penna., 
Art.  XVII.,  sec.  1. 

6 


CHAP.  I.]  DEFINITION    OF   A    BILL   OF    LADING.  [§  13. 

§  11.  As  they  are  exercising  a  public  employment,  carriers 
are  held  to  a  high  degree  of  care  in  the  conduct  of  their  busi- 
ness. To  diminish  the  heavy  responsibility  which  the  law  thus 
imposes  upon  him,  the  carrier  resorted  to  the  expedient  of  mak- 
ing a  special  contract  with  each  shipper  for  the  transportation 
of  his  particular  goods.  By  such  contract  it  was  agreed  that 
the  carrier  should  not  be  liable  for  loss  arising  from  certain 
specified  causes.  This  contract  was  the  foundation  of  the  bill 
of  lading.  It  will  thus  be  seen  that  the  bill  is  not  a  contract 
for  safe  transportation,*  for  this  was  the  obligation  at  common 
law^,  nor  does  the  bill  create  the  contract  between  the  shipper 
and  the  carrier.  It  was  adopted  only  as  a  convenient  mode  of 
reducing  the  contract  to  certainty  in  regard  to  the  specific 
terras.^  The  bill  will,  therefore,  be  found  to  contain  an  enumera- 
tion of  causes  of  loss  or  injury  to  the  goods  for  which  it  is 
specifically  agreed  by  the  parties  that  the  carrier  shall  not  be 
held  accountable.  The  consideration  for  this  release  from  lia- 
bility is  the  reduced  price  for  which  the  carrier  agrees  to  make 
the  transportation. 

§  12.  The  premium  to  which  the  carrier  is  entitled  for  trans- 
porting the  goods  and  in  consideration  of  the  payment  of  which 
he  agrees  to  transport,  is  known  as  "  freight,"  a  term  used  as 
well  to  designate  the  goods  themselves.  Mr.  Justice  Wayne 
in  the  case  of  Brittan  v.  Barnaby,  says :  "  The  word  freight, 
when  not  used  in  a  sense  to  imply  the  burden  or  loading  of 
the  ship  or  the  cargo  which  she  has  on  board,  is  the  hire  agreed 
upon  between  the  owner  or  master  for  the  carriage  of  goods  from 
one  part  or  place  to  another."^ 

Freight  may,  by  the  terms  of  the  bill,  be  made  payable  by 
the  shipper  at  the  time  of  shipment,  or,  by  the  consignee  on 
the  delivery  to  him  upon  the  completion  of  the  carriage, — the 
possession  of  the  goods  by  the  carrier  and  his  right  to  retain 
them  until  payment  atfording  him  security  against  loss. 

§  13.  From  the  definition  of  a  bill  of  lading,  it  will  be  seen 
that  the  instrument  possesses  three  distinct  characters.     First, 

■  Drew  v.  Red  Line  Trans.  Co.,  3  ^  Dunn  v.  Branner,  13  La.  Ann. 
Mo.  App.  Rep.  495.  Rep.  453. 

3  21  Howard,  527. 
7 


§  13.]  BILLS   OF    LADING.  [CHAP.  I. 

"  it  is  a  written  acknowledgment  of  the  receipt  of  goods"  or, 
more  briefly,  a  Receipt.  Second,  it  is  "  an  agreement  for  a  con- 
sideration to  transport  and  deliver  the  same."  It  is,  therefore, 
a  Contract.^  Again,  the  instrument  may  be  assigned  and  title 
to  the  goods  may  be  thereby  transferred.  It  becomes  thus  a 
"Muniment  of  Title."  It  has,  in  some  States,  been  declared  a 
negotiable  instrument. 

The  further  investigation  of  the  law  relating  to  the  paper 
may,  therefore,  conveniently  be  pursued,  by  viewing  the  bill, 
first,  as  a  Receipt,  second,  as  a  Contract,  and  third,  as  a  Muni- 
ment of  Title. 

»  The  Delaware,  14  Wallace,  601 ,  Cafiero  v.  Welsh,  8  Phila.  130. 

8 


CHAP.  II.] 


BILL   OF   LADING   IS   A   RECEIPT. 


[§14. 


CHAPTER  II. 


A  ETI  L  OF  LADING  IS  A  RECEIPT  AND  ITS  TERMS  MAY  BE 
VARIpfD  BY  PAROL  PROOF  AS  BETWEEN  THE  ORIGINAL 
PARTIES,  AS  TO  THE  DESCRIPTION  OF  THE  GOODS  AND 
AS  TO  THEIR  WEIGHT  AND  QUANTITY. 


Misdescription  by  the  carrier,  §  24. 
Statement  of  weight  and  quantity  only 
prima  facie    evidence   of  amount, 

§  25- 
Carrier  not  bound  by  the  statement  of 

quantity,  §  26. 
Illustrations  of  the  principle,  §  27. 
Contrary  doctrine  in  Georgia,  §  28. 
Neither  shipper  nor  consignee  bound 

by  the  statement  of  quantity,  §  29. 
EfTect  of  the  statement  of  quantity  on 

the  burden  of  proof,  §  30. 
"Quantity   guaranteed"    and   similar 

pi'ovisions,  §  31. 
Effect  of  the  qualification   "more  or 

less,"  §  32. 


The  bill  is  a  receipt  and  its  recitals 
may  be  varied  by  parol  proof  as  be- 
tween the  original  parties,  §  14. 
The  bill  is  not  conclusive  evidence  of 

delivery  to  the  carrier,  §  15. 
Illustrations  of  the  principle,  §  16. 
The  bill  is  prima  facie  evidence  of 

such  delivery,  §  17. 
Effect  of  a  bill  executed  before  recep- 
tion of  the  goods,  §  18. 
Effect  of  a  bill  receipting  for  goods  im- 
properly described,  §  19. 
Misdescription  by  shipper  inducing  less 

degree  of  care,  §  20. 
Instances  of  misdescription,  §  21. 
Further  instances,  §  22. 
Misdescription  to  secure  lower  rate  of 
freight,  §  23. 

§  14.  The  ordinary  bill  of  lading,  whether  for  transportation 
by  land  or  water,  contains  an  acknowledgment  of  the  receipt 
by  the  carrier  of  certain  goods ;  a  statement  of  their  quantity, 
weio-ht,  quality,  or  value  and  a  statement  of  their  condition  at 
the  "time  of  shipment.  That  part  of  the  bill  which  relates  to 
these  matters  may  be  treated  as  a  receipt  and  as  distinct  from 
those  parts  which  contain  the  terms  of  the  contract  for  carnage.^ 
The  receipt,  as  between  the  original  parties  to  the  bill,  is  jmma 
facie  evidence  of  the  truth  of  the  statements  contained  in  it. 

i  Myer  v.  Peck,   1  Tiffany  (28  N.  Y.),  590;  Higglns  v.  U.  S.  M.  S.  S. 
•   Co.,  3  Blatchf.  (U.  S.  C.  C.)  282. 


§  16.]  BILLS    OF   LADING.  [CHAP.  II. 

Its  recitals  as  between  the  original  parties,  that  is,  as  between 
the  shipper,  the  carrier  and  the  consignee,  are,  however,  suscep- 
tible, in  certain  cases,  of  explanation,  modification  or  contra- 
diction bj  parol  proof.  ^ 

§  15.  The  acknowledgment  in  the  bill  that  goods  have  been 
received  for  transportation,  is  not  conclusive  of  the  fact  that 
they  have  been  so  received.^  It  is  competent  for  the  carrier  to 
show  that  the  shipper  had  no  such  goods  as  those  receipted  for, 
or  that,  having  such  goods,  they  were  never  delivered  to  him.^ 

§  16.  An-  illustration  may  be  found  in  the  case  of  "  The 
Lady  Franklin."  Here  a  bill  of  lading  was  given  by  a  person 
who  was  agent  for  several  vessels.  The  vessels  had  separate 
owners  who  were  not  connected  by  any  joint  undertaking  to 
be  responsible  for  each  other's  breaches  of  contract.  The  bill, 
through  the  mistake  of  the  agent,  acknowledged  that  certain 
goods  had  been  shipped  on  one  vessel,  when  in  fact  they  had 
been  previously  shipped  on  another.  The  goods  were  lost  by 
the  vessel  upon  which  they  were  shipped.  A  libel  was  filed 
by  the  shippers  (who  were  the  owners  of  the  goods),  against 
the  vessel  by  which  their  bill  recited  the  goods  to  have  been 
received.  It  was  held  that  she  could  not  be  made  liable  for 
the  loss, — the  bill  as  between  the  original  parties  being  open  to 

'  Cox  V.  Peterson,  30  Ala.  608;  Stirling,  3  L.  C.  Jurist,  103  (Sup. 
Wayland  v.  Mosely,  5  lb.  430  ;  Myer  Ct.)  ;  contra,  Pecks  v.  Dinsmore,  4 
V.  Peck,  1  Tiffany  (28  N.  Y.),  590;  Porter  (Ala.),  212. 
O'Brien  v.  Gilchrist,  34  Me.  554 ;  ^  Goodrich  v.  Norris,  1  Abbott's 
Cafiero  v.  Welsh,  8  Phila.  Rep.  130;  Admiralty  Cases,  196;  Greenleaf  on 
Stm.  "Wisconsin  v.  Young,  3  Green  Ev.,  vol.  1,  §  305. 
(Iowa),  268  ;  The  Lady  Franklin,  8  '^  Berkeley  v.  Watling,  7  Adolph. 
Wallace,  325 ;  Glass  v.  Goldsmith,  22  &  Ellis,  29  ;  The  Schr.  Freeman  v. 
Wise.  488;  Bissell  v.  Price,  16  111.  Buckingham,  18  How.  182;  Grant  v. 
408;  Wood  V.  Perry,  1  Wright  Norway,  10  C.  B.  665;  Meyer  v. 
(Ohio),  240;  Witzler  v.  Collins,  70  Dresser,  16  C.  B.  N.  S.  657;  The 
Me.  290;  Kirkman  v.  Bowman,  8  Delaware,  14  Wallace,  602;  Hub- 
Robinson  (La.),  246  ;  White  v.  Van  be.rsty  v.  Ward,  8  Ex.  330 ;  Sears  v. 
Kirk,  25  Barbour  (N.  Y.),  16;  Lee  Wingate,  3  Allen,  103;  Baltimore, 
V.  Salter,  Hill  &  Denio  Supplt.  (X.  etc.,  R.  R.  Co.  v.  Wilkens,  44  Md. 
Y.),  163;  Bradstreet  v.  Heron,  2  11;  Fearn  t?.  Richardson,  12  La.  Ann. 
Blatchf,  116;  The  J.  W.  Brown,  1  Rep.  752;  Fragano  y.  Long,  4  B.  &  C. 
Bissell  (C.  C),  76;  Fitzhugh  v.  219;  Hunt  v.  M.  C.  R.  R.  Co.,  29 
Wyman,    9    N.    Y.    559 ;    Fowler   v.  La.  Ann.  Rep.  446. 

10 


CHAP.  II.]  BILL   OF  LADING   IS    A    RECEIPT.  [§  17. 

explanation,  and  it  having  been  shown  that  the  vessel  had  in 
fact  never  received  the  goods  for  which  the  receipt  had  been 
given. ^ 

A  somewhat  similar  case  was  Crenshawe  v.  Pearce,  where  an 
admiralty  suit  was  brought  upon  three  bills  of  lading  reciting 
the  shipment  of  848  bales  of  cotton  on  board  "  The  Arizona" 
from  New  York  for  Liverpool.  Only  289  bales  were  sent  by  "  The 
Arizona,"  the  rest  being  carried  by  "  The  Wisconsin,"  which 
sailed  a  week  later.  Between  the  time  of  the  arrival  of  the  two 
ships  at  Liverpool,  the  price  of  cotton  fell.  Both  ships  be- 
longed to  the  same  liiie,  but  to  different  owners.  The  agent 
of  the  line  made  the  contracts  for  carriage  upon  a  steamship 
of  the  line  "  expected  sailing  6th  and  (or)  loth  September, 
agent's  option,"  etc.  The  order  issued  for  the  receipt  of  the 
cotton  by  the  line,  specified  the  steamship  "Arizona  and  (or) 
Wisconsin,  about  800  bales  of  cotton."  By  mistake  without 
the  knowledge  or  authority  of  the  agent  and  partly  by  the 
carelessness  of  the  libellant,  the  bills  of  lading  recited  the 
shipment  of  848  bales  by  "  The  Arizona."  The  court  held  that 
the  libel  should  be  dismissed.^ 

In  the  recent  case  of  Smith  v.  Tregarthen,  the  defendant,  the 
master  of  a  steamer,  signed  bills  of  lading  for  four  hundred 
bales  of  cotton  for  Liverpool.  In  consequence  of  insufincient 
room,  only  one  hundred  and  sixty-five  bales  could  be  shipped 
and  the  defendant  directed  the  remaining  bales  to  be  shipped 
by  another  steamer  which  arrived  at  Liverpool  three  days  later 
than  the  former.  Within  these  three  days  a  fall  in  the  price 
of  cotton  took  place  and  the  plaintiffs  sued  the  defendant  for 
the  loss  occasioned  thereby.  The  court  held  that  the  plaintiffs 
could  recover  and  that  the  measure  of  damages  was  the  fall  in 
value  at  Liverpool  of  the  goods,  between  the  day  on  which 
they  ought  to  have  been  delivered  and  that  on  which  the  plain- 
tiff' in  fact  received  them.^ 

§  17.  Though  not  conclusive,  the  bill  of  lading  is  neverthe- 
less prma /ac^'e  evidence  of  the  actual  delivery  of  goods  to  the 

'  The  Lady  Franklin,  8  Wallace,  ^  Smith  v.  Tregarthen,  56  L.  J.  Q. 
325.  B.  437. 

2  Crenshawe    v.    Pearce,    37   Fed. 
Rep.  432. 

11 


§  18.]  BILLS   OF   LADING.  [CHAP.  II. 

carrier.^  It  distinctly  acknowledges  ttat  goods  have  been 
"shipped,"  or  have  been  "  delivered  to"  or  "  received  by"  him. 
Even  where  the  bill  contains  no  such  acknowledgment  by 
the  carrier  in  the  form  of  a  receipt,  his  promise  in  the  bill  to 
convey  and  deliver  certain  goods  implies  their  receipt  by  him.^ 

A  carrier  was  sued  upon  a  receipt  in  this  form :    "  We  have 

received  from Walker  3  hhds.  of  tobacco,  which  we  will 

freight  to  him  to  l^ew  Orleans,  and,  if  they  bear  inspection,  pay 
him  the  price  they  may  sell  for  on  our  return."  He  was  held 
liable  for  a  lost  hogshead,  as  if  sold  at  Kew  Orleans,  though  it 
never  had  been  put  on  his  boat.^  Again,  a  transportation  com- 
pany, guilty  of  negligence  in  signing  a  receipt  without  ascer- 
taining by  actual  observation  whether  certain  flour  receipted 
for  had  arrived  at  its  warehouse  and  simply  relying  upon  the 
statement  of  a  clerk  of  a  connecting  railroad  that  it  had  been 
delivered  there,  was  held  liable  to  the  owner  of  the  flour  for  its 
non-delivery.* 

A  bill  executed  eighteen  days  after  the  goods  were  received 
by  the  carrier  acknowledging  the  goods  to  have  been  shipped, 
has  been  held  admissible  as  evidence  of  their  deliver^/  to  him 
in  a  case  free  from  suspicion  of  fraud,  where  a  fair  reason 
could  be  assigned  for  the  failure  to  execute  the  bill  at  the  time 
the  goods  were  received."  The  bill  is  not  objectionable  as  evi- 
dence because  it  acknowledges  the  receipt  of  other  goods  besides 
those  forming  the  subject-matter  of  the  suit.^ 

§  18.  The  very  nature  of  a  bill  of  lading  shows  that  it  should 
not  be  signed  until  the  goods  are  actually  in  the  hands  of  the 
carrier,  since,  as  has  been  seen,  it  describes  the  goods  as  "shipped" 
or  "  received."'  If,  however,  a  bill  of  lading,  through  inad- 
vertence or  otherwise,  is  signed  before  the  goods  are  actually 
shipped  and  afterwards  certain  goods  are  delivered  to  the  carrier 

'  Flower    V.    Douns,    12    Robinson  "  Northern  Trans.  Co.  v.  McClary, 

(La.),  101  ;  Southern  Ex.  Co.  v.  Hess,  66  111.  233. 

53  Ala.   19;  Lishraan  v.  Christie,  L.  ^  Graham    v.    Penna.    Ins.    Co.,    2 

R.,  19  Q.  B.  D.  333.  Washington  C.  C.  113. 

2  Southern  Ex.  Co.  v.  Craft,  49  ^  Wallace  v.  Vigus,  4  Blackford 
Miss.  480.  (Ind.),  260. 

3  Jones  V.  Walker,  5  Yerger  ^  Hunt  e<  aL  v.  Mississippi,  etc.,  R. 
(Tenn.),  427.  R.  Co.,  29  La.  Ann.  Rep.  446. 

12 


CHAP.  IL]  ~    BILL    OF   LADING   IS    A    RECEIPT.  [§  20. 

as  and  for  the  goods  thus  receipted  for,  the  bill  will  operate  on 
these  goods,  as  between  the  shipper  and  carrier,  by  way  of  rela- 
tion and  estoppel  and  the  rights  and  obligations  of  all  concerned 
will  be  thereafter  the  same  as  if  the  goods  had  been  actually 
delivered  at  the  time  of  the  si2:nino:  of  the  bill.^ 

In  the  case  of  The  Idaho^  it  was  held  that  although  the 
statutes  of  the  State  of  Louisiana  prohibited  the  issue  of  bills 
before  the  actual  receipt  of  the  goods,  there  was  nothing  in 
them  forbidding  the  curing  of  an  illegal  bill  by  supplying 
goods,  the  receipt  of  which  had  been  previously  acknowledged. 

A  bill  of  lading,  however,  signed  by  the  master  of  the  vessel 
after  the  goods  have  been  received  by  the  carrier  and  lost,  can- 
not create  a  liability.  The  rights  of  the  parties  have  been  pre- 
viously fixed  and  the  bill  is  wholl}'  inoperative.^ 

§  19.  While  a  common  carrier  is  bound  to  deliver  the  spe- 
cific goods  entrusted  to  him,^  yet  where  goods  are  receipted  for 
in  the  bill  and  are  improperly  described  or  are  wrongly  stated 
to  be  of  a  particular  kind  or  quality,  these  statements,  as  be- 
tween the  original  parties,  are  open  to  explanation  or  contra- 
diction by  extrinsic  evidence. 

§  20.  A  misdescription  of  the  goods  covered  by  the  bill  may 
be  due  to  the  act  of  the  shipper  or  to  that  of  the  carrier.  The 
shipper  may  injuriously  ati'ect  the  rights  of  the  carrier  by 
describing  the  goods  to  be  of  a  kind  or  quality  difl^erent  from 
their  true  one,  thus  inducing  the  carrier  to  relax  his  vigilance 
and  to  exercise  a  less  degree  of  care  in  the  transportation.  This 
may  result  in  injury  to  or  loss  of  the  goods.  In  such  a  case  the 
consequences  must  fall  upon  the  party  who  has  misdescribed 
the  goods  even  though  he  has  done  so  innocently.^ 

If  there  be  fraud  on  the  part  of  the  shipper  in  representing 
the  nature  of  the  goods,  the  carrier  is  exempted  from  liability,^ 
except  for  that  amount  of  care  which  should  have  been  given 

^  Rowley  V.  Bigelow,  12  Pickering,         ^  Cafiero  v.  AVelsh,   8  Phila.    Rep. 
307  ;  The  Delaware,  14  Wallace,  602.  ,  130. 
2  The  Idaho,  3  Otto,  575.  6  Fassett  v.  Ruark,  3  La.  Ann.  Rep. 

^  The  Bark  Edwin,  1  Sprague,  Dec,     6  94. 
(D.  C.  Mass.)  477.  6  cale  v.  Goodwin,   19  Wend.  (N. 

Y.)  251. 

13 


§  21.]  BILLS    OF    LADING.  [CHAP.  II. 

to  goods  sucli  as  the  article  shipped  is  alleged  to  be.^  The 
representations  must  however  be  such  as  to  deceive  the  carrier. 
If  they  are  obviously  incorrect  his  liability  still  remains  and  he 
cannot  relieve  himself  from  it  by  setting  up  misrepresentations, 
unless  they  respect  matters  which  are  latent  in  their  character.^ 
A  person  omitting  without  fraud  to  state  fully  the  contents  of  a 
package  may  be  precluded  from  recovering  the  value  of  articles 
omitted,  but  his  right  to  recover  for  the  articles  enumerated  is 
not  affected.^ 

§  21.  Bank  bills  are  not  properly  included  in  the  phrase 
"goods,  freight,  etc.,"  when  used  in  connection  with  transpor- 
tation. It  was  so  held  in  a  case  where  the  bills  were  shipped 
in  a  valise  which  was  packed  in  a  large  box  with  a  number  of 
articles  of  no  special  value  and  the  carrier  was  not  informed 
that  there  was  money  in  the  box.*  Where  a  package  contain- 
ing "  a  wreath"  was  shipped  and  the  wreath  was  partly  made 
of  o;lass  and  the  glass  was  found  to  be  broken  on  the  arrival 
at  destination,  it  was  held  that  the  carrier  was  not  liable,  as 
he  was  not  properly  informed  of  the  fragile  character  of  the 
property  by  its  description.' 

Again,  a  shipper  delivered  property  for  transportation  as  a 
bundle  of  bedding  and  upon  a  loss  claimed  that  it  contained 
valuable  clothing,  etc.  It  was  here  held  that  the  failure  to 
disclose  the  real  contents  of  the  bundle  released  the  carrier 
from  all  liability  except  as  to  what  might  properly  be  termed 
"  bedding."^  It  was  claimed  by  a  carrier  company  that  the 
shipper  of  a  valuable  cow  should  have  described  her  to  the  agent 
as  being  with  calf  as  she  was  thus  rendered  more  liable  to  injury. 
It  was  held  that  the  failure  to  give  such  information  did  not 
release  the  carrier  from  liability  for  negligence  causing  injury 
to  the  animal.^ 

'  Chicago,  etc.,  R.R. Co.  y.  Shea,  66  "  Chicago   &   Aurora  R.  R.  Co.  v. 

111.  471  ;  McCune  v.  B.  C.  R.  &  N.  R.  Thompson,  19  Til.  578. 

R.  Co.,  52  Iowa  600.  ^  American  Express  Co.  v,  Perkins, 

2  N.    J.    R.    R.   &    Trans.  Co.  v.  42  111.  458. 

Penna.  R.  R.  Co.,  3  Dutcher  (N.  J.),  «  Chicago,  etc.,  R.  R.  Co.  v.  Shea, 

100.                                                           .  66111.471  ;  Savannah,  etc.,  R.  R.  Co. 

^  Southern  Ex.  Co.  v.  Womrack,  1  v.  Collins,  3  Southeast.  Rep.  416. 

Heiskell  (Tenn.),  256.  ^  McCune  v.  B.  C.  R.  &  N.  R.  Co., 


52  Iowa  600. 


14 


CHAP.  II.]  BILL   OF   LADING   IS   A   RECEIPT.  [§  24. 

§  22.  The  word  "  package"  as  used  in  bills  of  lading  is  de- 
fined by  the  Supreme  Court  of  Alabama  to  be  a  small  parcel 
or  bundle  whose  appearance  gives  no  adequate  information 
of  its  contents.  A  hogshead  of  tobacco  or  a  bale  of  cotton,' 
or  corn  in  bulk^  would  therefore  all  be  improperly  described  by 
the  term  "package."  Pistols  are  considered  freight.  The  fact 
that  articles  of  greater  value  were  packed  in  the  same  box  with 
them  does  not  change  their  character  and  will  not  relieve  the 
cari'ier  from  liability  for  their  loss  if  these  more  valuable  goods 
be  not  lost.^ 

§  23.  The  second  way  in  which  a  misdescription  by  the 
shipper  may  injuriously  afiect  the  carrier  is  by  leading  him  to 
carry  for  a  less  compensation  than  that  to  which  he  would 
properly  be  entitled.  Thus  where  goods  really  "  4ouble  first 
class"  were  shipped  as  "  first  class"  with  a  view  of  escaping 
payment  of  the  proper  rate  of  freight,  the  carrier  was  held 
entitled  to  charge  the  "  double  first  class"  rate  on  discoverino- 
the  intentional  misdescription  of  the  goods  by  the  shipper.* 

Certain  goods  were  described  by  the  shipper  in  the  bill  as 
"hardware."  During  the  transit  the  goods  were  discovered  to 
be  "  sewing  machines"  for  the  carriage  of  which  a  higher  rate 
of  freight  was  due.  It  was  held  that  when  the  true  character 
of  the  goods  was  discovered  the  railroad  agent  had  the  right  to 
bill  them  truly  and  charge  the  increased  freight.^ 

§  24.  A  misdescription  of  the  goods  by  the  carrier  is  not 
binding  on  the  shipper,  and  the  carrier  cannot  in  such  a  case 
shield  himself  behind  the  strict  letter  of  the  recital  in  his 
bill  where  he  receipts  generally  but  with  a  knowledge  of  the 
contents.  In  the  well-known  case  of  Harmon  v.  The  New  York 
and  Erie  Railroad  Company^  the  facts  were  that  the  agent  of 
the  carrier  company  signed  a  receipt  for  a  lot  of  furniture  and 
among  the  different  articles  specified  was  "  one  cradle"  which 
had  carpet  wrapped  around  it,  was  bound  with  cords  and  con- 

'  Southern    Ex.  Co.  v.    Crook,  44  ^  Rice  v.  I.  &  St.  L.  R.  R.  Co.,  3 

Ala.  468.  Mo.  App.  27. 

2  McCoy  V.  Erie,  etc.,  R.  R.  Co.,  42  ^  Summer  v.  Southern  R.  R.  Asso- 
Md.  499.  ciation,  7  Baxter  (Tenn.),  345. 

3  Hyde  et  al.  v.  New  York,  etc.,  ^  28  Barbour,  323  or  65  N.  Y.  111. 
S.  S.  Co.,  17  La.  Ann.  Rep. ,29. 

15 


§  25.]  BILLS   OF   LADING.  [CHAP.  II. 

tained  a  valise  with  wearing  apparel  in  it.  The  agent  was 
informed,  when  the  shipment  was  made,  of  what  the  cradle 
contained.  The  court  held  in  a  suit  for  damages  for  the  loss  of 
the  contents  that  the  company  was  bound  to  carry  not  only  the 
"  cradle"  but  also  the  goods  then  in  it. 

In  another  case,  marble  in  slabs  sawed  from  blocks  was  re- 
ceipted for  as  "  unwrought  marble,  in  boxes."  Evidence  was 
introduced  on  the  one  hand  to  prove  that  such  marble  was 
classed  by  several  railroads  and  dealers  generally  as  "  un- 
wrought." On  the  other  hand  proof  was  offered  to  show  that 
there  was  no  uniform  rule  on  this  subject  and  that  the  agent 
who  made  the  classification  for  the  carrying  railroad  company 
in  this  case  intended  to  class  such  marble  as  "  wrought ;"  that 
his  predecessors  had  done  so  and  that  the  receipt  for  this  mar- 
ble was  by  mistake  and  contrary  to  the  rules  of  the  company. 
It  was  here  held  that  the  jury  were  properly  charged  that  the 
terms  "  wrought"  and  "  unwrought,"  as  applied  to  the  marble 
in  question,  are  of  doubtful  signification  and  that  it  was  com- 
petent for  the  plaintiff  to  show  what  meaning  is  given  to  them 
by  custom  and  usage  and  if  the  jury  believed  that  the  gener- 
ally prevailing  usage  among  manufacturers,  dealers,  and  carriers, 
is  to  class  and  consider  marble  in  slabs  as  "  unwrought,"  then 
the  defendant  can  claim  freight  upon  it  only  as  of  that  class.* 

§  25.  Where  the  bill  of  lading  receipts  for  a  specific  quantity 
or  a  specific  weight  of  goods,  it  is  prima  facie  evidence  that 
the  carrier  received  the  quantity  or  weight  named. ^  Such  an 
acknowledgment  is  not,  however,  conclusively  binding^  as  be- 
tween the  original  parties,  namely,  as  between  the  shipper  and 
carrier,  or  as  between  the  carrier  and  a  consignee  who  has  made 
no  advances  on  the  faith  of  the  bill  and  who  therefore  stands 
on  the  same  footing  as  the  shipper.'* 

1  Bancroft  v.  Peters,  4  Mich.  619.  28  N.  Y.  590  ;   Abbe  v.  Eaton,  51   N. 

2  McLean  v..  Fleming,  25  L.  T.  N.  Y.  411;  Kirkman  v.  Bowman,  8 
S.  317;  2  L.  11.  H.  L.  Sc.  App.,  Robinson  (La.),  246;  Erb  v.  Keo- 
128;  Hall  v.  G.  T.  R.  Co.,  34  Up.  kuk  Packet  Co.,  43  Mo.  53;  The  J. 
Can.  2  B.  517;  Shatzell  v.  Hart,  2  B.  Brown,  1  Bissell,  76;  Goodrich?;. 
Marsiiall  (Ky.),  191.  Norris,  Abbotts  Adm.  196. 

3  Steamboat  Wisconsin  v.  Young,  3  *  Berkeley  v.  Watling,  7  Adolp.  & 
Green  (Iowa),  268;  Meyer  v.   Peck,  Ellis,  29  ;  Sutton  y.  Kettell,  1  Sprague, 

16 


CHAP.  II.]  BILL    OF   LADING   IS    A    RECEIPT.  [§  27. 

§  26.  l^otwithstanding  his  receipt  for  a  specific  quantity  or 
weight  of  goods,  the  carrier  may  show  that  he,  in  fact,  received 
a  less  quantity  or  weight.  If  he  prove  that  he  has  delivered, 
or  is  willing  to  deliver,  all  that  he  received  for  transportation, 
he  cannot  be  held  liable  for  the  difference  between  the  actual 
amount  and  that  for  which  he  improperly  gave  his  receipt.^ 
Especially  does  the  rule  apply  to  a  case  where  the  bill  is  signed 
for  an  amount  in  excess  of  the  true  one,  by  reason  of  the  fraud 
of  the  shipper  or  of  his  agent.^ 

§  27.  The  master  of  a  ship  in  England,  notwithstanding  the 
bills  of  lading  Act,  may  show  that  the  cargo  actually  received  by 
him  differs  in  weight  from  that  signed  for  in  the  bill  of  lading, 
at  all  events  where  the  weight  mentioned  in  the  bill  is  mere 
matter  of  measurement.^  An  action  was  brought  by  the  owners 
of  a  vessel  against  the  owner  of  a  cargo  of  wheat  for  freight 
withheld  because  of  a  difference  between  the  number  of  bushels 
of  wheat  expressed  in  the  bill  of  lading  and  that  delivered  to 
the  consignee.  The  grain  was  delivered  to  the  carrier  from  a 
warehouse  and  the  defendant  gave  up  the  warehouse  receipts 
on  receiving  the  plaintiffs'  bill  of  lading.  The  bill  being  open 
to  explanation  between  the  original  parties,  it  was  held  that 
the  fact  that  the  shipper  surrendered  his  warehouse  receipts 
for  the  full  amount  named  in  the  bill  does  not  preclude  the 
carrier  from  showing  the  mistake  in  regard  to  the  quantity 
of  wheat  receipted  for  by  him.* 

Coal  was  shipped  for  the  port  of  JB.,  consigned  to  a  railroad 
company  having  its  terminus  there,  and  to  be  transj^orted  by 
the  latter  to  W.  The  bill  of  lading  stated  the  number  of  tons 
and  the  freight  per  ton.  The  railroad  company  paid  the  freight 
to  the  master  of  the  vessel  and  transported  all  the  coal  received, 

309  ;  Blanchard  v.  Page,  8  Gray,  287  ;  Strong  v.  Grand  Trunk  R.  K.  Co.,  15 

The   Lady    Franklin,    8    Wall.    3-25  ;  Mich.  206. 

Hall  V.   Mayo,    7    Allen  (89   Mass.),  ^  Bates  v.  Todd,  1  Moody  &  Rob- 

454  ;   Ryder  v.  Hall,  ib.  456.  inson,  106  (Eng.  N.  P.). 

'  L.  R.  &  Ft.  S.  R.  R.  Co.  V.  Hall,  ^  Blanchet  w.  Powell's  Colliery  Co., 

32  Arkansas,  669;   Kirkman  v.  Bow-  9  L.   R.  Exch.   74;   43  L.  J.  Exch. 

man,  8  Robinson  (La.),  246;   Hall  v.  50;   22  W.  R.  490;  30  L.  T.  N.  S. 

Mayo,  7  Allen  (89  Mass.),  454 ;  Dean  28. 

V.  King,   22  Ohio  State,   119;    Man-  ''  Glass  u.  Goldsmith,  22  Wisconsin, 

Chester  v.  Milne,  1  Abbott  Bros.,  115  ;  488. 

2  17 


§  29.J  BILLS    OF   LADING.  [CHAP.  II. 

to  W.  On  being  weighed  there  after  delivery,  it  was  found  to 
fall  short  several  tons  from  the  amount  stated  in  the  bill.  It 
was  the  custom  of  the  railroad  company,  known  to  the  parties^ 
for  whom  the  coal  was  transported,  not  to  weigh  the  coal  thus 
delivered  but  to  depend  on  the  bill  of  lading,  but  in  the 
present  case  the  agents  of  the  railroad  company  could,  with 
ordinary  care,  have  observed  a  deficiency.  It  was  here  held 
in  an  action  for  freight  by  the  railroad  company,  that  it  was 
not  liable  for  the  deficiency  in  the  number  of  tons  of  coal,  nor 
to  a  deduction  from  its  charges  of  any  of  the  freight  paid  the 
master.^ 

§  28.  A  contrary  doctrine  would  seem  to  obtain  in  the  state 
of  Georgia.  A  railroad  company  was  sued  for  the  loss  of  cer- 
tain potatoes.  The  car  was  loaded  by  the  plaintifl:\  A  receipt 
was  given  on  the  plaintifl:''s  measure  for  9600  lbs.  and  freight 
accordingly  charged  by  weight.  On  arrival,  it  was  found  that 
they  had  fallen  off  in  weight.  Here  it  was  held  that,  the  com- 
pany's agent  having  receipted  for  the  potatoes  by  weight  and 
having  taken  freight  for  9600  lbs.,  the  company  was  bound 
thereby.^ 

§  29.  As  the  carrier  is  not  estopped  by .  his  receipt  for  a 
specific  quantity  from  showing  a  diflerent  amount,  so  is  the 
shipper  or  consignee  not  to  be  prejudiced  by  the  statement  of 
quantity. 

A  carrier  undertook,  by  bill  of  lading,  to  carry  a  carload  of 
oats  stated  therein  to  weigh  20,000  lbs.  Finding  afterwards 
that  there  were  really  23,667  lbs.,  the  excess  was  taken  out  and 
the  rest  forwarded  to  consignees,  who  had,  in  fact,  paid  for  and 
owned  the  whole  quantity.  It  was  held  that  even  if  the  ship- 
per did  wrongfully  inform  the  company  as  to  the  weight  of  the 
oats,  it  could  not  aflect  the  consignee's  title  nor  justify  the 
carrier  in  converting  the  oats  to  his  own  use,  even  if  the  con- 
signees knew  that  they  were  underbilled  and  intended  to  take 
them  without  paying  freight  on  the  excess  unless  it  was  de-' 
manded.^  ' 

'  Naugatuck  R.  R.  Co.  v.  Beardsley  "  Wiggin  v.  B.  &  A.  R.  R.  Co.,  120 
Scythe  Co.,  33  Conn.  218.  Mass.  201. 

2  Central  R.  R.  and  Banking  Co.  v. 
Anderson,  58  Georgia,  393. 

18 


CHA-P.  II.]  BILL    OF   LADING   IS    A    RECEIPT.  [§  31. 

§  30.  The  statement  of  quantity  or  weight  is,  as  we  have 
seen,  j^^i^'^c^  facie  evidence  that  the  quantities  named  in  the 
bill  were  received  by  the  carrier.  The  onus  of  rebutting  this 
presumption  and  ,of  showing  that  a  less  quantity  was  actu- 
ally received  rests  upon  the  carrier.  If  this  be  satisfactorily 
shown,  the  carrier  is  relieved  from  liability  for  the  apparent 
deficiency,^  but  where  the  consignee  has  received  goods  at  a 
wharf  without  qualification  or  reservation  of  the  right  to  in- 
spect, weigh,  or  measure  them  and  the  carrier  proves  due  care 
of  them  during  the  transit  and  an  actual  delivery  of  all  in  his 
possession  on  his  arrival,  the  burden  of  proof  is  on  the  con- 
signee to  establish  that  a  deficiency  in  the  weight  specified  in 
the  bill,  afterwards  discovered,  is  chargeable  to  the  wrongful  act 
or  neglect  of  the  carrier.^ 

§  31.  A  custom  to  treat  the  statement  of  quantity  as  conclu- 
sive upon  the  carrier  has  been  held  to  be  unreasonable  and  void,^ 
but  the  statement  may  be  made  conclusive  by  the  use  of  the 
words  "  quantity  guaranteed."*  If  the  language  of  the  bill  of 
ladino;  should  be  deemed  insufiicient  to  determine  the  meanins; 
of  the  words  "  quantity  guaranteed,"  it  may  be  regarded  as  a 
technical  expression  to  be  explained  by  the  testimony  of  persons 
in  the  business  knowing  and  understanding  it.^ 

To  preclude  the  carrier  from  showing  a  mistake  in  quantity, 
the  language"  of  the  bill  of  lading  must  be  clear  and  explicit  to 
that  efiect.  A  bill  of  lading  contained  the  clause,  "All  damages 
caused  by  boat  or  carrier,  or  deficiency  of  cargo  from  quantity 
as  herein  specified,  to  be  paid  by  the  carrier  and  deducted  from 
the  freight,  and  any  excess  on  the  cargo  to  be  paid  to  the 
carrier  by  the  consignee."  The  quantity  delivered  was  some 
seventy  bushels  short  of  the  quantity  specified  in  the  bill  of 
lading.  It  was  held  that  this  bill  of  lading  was  neither  a 
guaranty  of  the  quantity  specified,  nor  an  agreement  that  the 
bill  of  lading  should  furnish  the  only  evidence  of  the  quantity. 
No  damages  could  have  been   sustained  in  case   the  carrier 

»  McLean  v.  Fleming,  25  L.  T.  N.  »  Strong  v.  G.  T.  R.  R.,   Co.,    15 

S.  317;  2  L.  R.  H.  L.,  S.  C.  app.  128.  Mich.  206. 

2M'Cready  v.  Homes,  VI.   Ameri-  *  Bissell  u.  Campbell,  54  N.  Y.  353. 

can  Law  Reg.  229,  Dist.  Ct.  U.  S.  for  ^  i^, 
S.  Carolina. 

19 


§  32.]  BILLS    OF   LADING.  [CHAI*.  II. 

delivered  all  he  received  and  by  such  a  delivery  his  liability 
was  discharged.' 

A  bill  of  lading  contained  the  stipulation,  "Any  damage  or 
deficiency  in  quantity  the  consignee  will  deduct  from  the  balance 
of  freight  due  the  carrier."  This  was  neither  a  guaranty  that 
the  carrier  had  received  the  whole  quantity  of  goods  specified 
nor  an  agreement  to  pay  for  a  deficiency.  The  w'ords  "  defi- 
cienc}^  in  quantity"  were  held  to  relate  to  the  property  actually 
shipped  and  not  to  the  amount  named  in  the  bill.* 

In  the  case  of  Murton  v.  Kingston  and  Montreal  Forwarding 
Company^  the  bill  provided,  "  All  the  deficiency  in  cargo  to  be 
paid  for  by  the  carrier  and  deducted  from  the  freight  and  any 
excess  in  the  cargo  to  be  paid  for  to  the  carrier  by  the  con- 
signee." The  quantity  named  in  the  bill  was  less  than  that 
actually  shipped.  The  carrier  claimed  the  excess,  but  was  held 
not  to  be  entitled  to  it  as  the  provision  in  the  bill  did  not  have  the 
eftect  of  giving  it  to  him,  nor  did  any  custom  entitle  him  to  it. 

Where  a  written  contract  was  made  for  the  purchase  of  the 
cargo  of  a  ship  as  it  stood,  consisting  of  about  1300  quarters  of 
Indian  corn,  "  the  quantity  to  be  taken  from  the  bill  of  lading," 
etc.,  and  the  quantity  turned  out  to  be  somewhat  less  than  1300 
quarters,  the  proper  construction  was  held  to  be  that  the  parties 
had  agreed  to  buy  and  sell  the  cargo  at  a  price  to  be  calculated 
from  the  quantity  stated  in  the  bill  of  lading  and  not  to  depend 
upon  the  actual  quantity.  The  purchaser  took  the  chance  of 
the  actual  quantity  turning  out  more,  or  the  risk  of  its  turning 
out  less  than  the  quantity  stated  and  so  he  could  not  recover 
for  short  delivery.* 

§  32.  In  order  to  preclude  any  possible  misconstruction 
of  the  liability  which  the  carrier  intends  to  assume  for  the 
statement  of  quantity  or  w^eight  contained  in  his  bill,  the  quali- 
fication "  more  or  less"  is  sometimes  added.  The  use  of  these 
words  indicates  that  the  carrier  does  not  intend  to  be  bound  by 
the  statement  of  quantity  or  weight,  and  that  it  is  to  be  re- 
garded as  an  estimate  rather  than  an  exact  measurement.  A  bill 
reciting  a  shipment  of  a  specified  quantity  "  more  or  less"  is 

1  Abbe  V.  Eaton,  51  X.  Y.  411.  *  Covas  i-.  Bingham,  2  C.  L.  R.  212; 

2  Meyer  r.  Peck,  28  N.  Y.  590.  2  El.  and  Bl.  836;   18  Jur.   596;   23 

3  18  Can.  Law  Jour.  278.  L.  J.  Q.  B.  26. 

20 


CHAP.  II.]  BILL   OF    LADING   IS   A   RECEIPT.  [§  32. 

complied  with  by  delivering  a  less  quantity  if  no  more  was 
shipped.^ 

A  consignor  shipped  22,631  bushels  of  rye  by  a  common  carrier 
and  received  a  bill  of  lading  for  "  20,000  pounds  more  or  less." 
The  way-bill  received  by  a  subsequent  carrier  was  simply  for 
20,000  pounds.  This  carrier  sold  the  portion  of  the  rye  in  excess 
of  20,000,  claiming  the  right  to  do  so  because  it  was  not  in  the 
way-bill.  It  was  here  held  to  be  a  question  for  the  jury  whether 
the  plaintifts  (the  consignees)  did  own  all  the  rye  in  the  car  and 
whether  the  defendant  had  converted  to  its  own  use  the  portion 
sold  by  it.  If  the  consignor  had  fraudulently  understated  the 
quantity  so  as  to  get  the  rye  carried  for  less  freight,  then  the 
carrier  would  not  be  bound  to  deliver  more  than  the  quantity 
called  for.^ 

A  receipt  given  by  a  carrier  for  a  specific  quantity  contained 
a  notice,  printed  at  the  top  of  it,  "  rates  and  weights  entered  in 
receipts  or  shipping  bills  will  not  be  acknowledged."  The 
carrier  was  not  estopped  by  the  statement  of  quantity  contained 
in  the  bill  from  showing  that  a  less  amount  was  actually  re- 
ceived by  him  and  he  was  not  liable  for  the  apparent  deficiency.3 

I  Kelley  v.  Bowker,   11  Gray  428  ;  "  Peebles  y.  B.  &  A.  R.  R.  Co.,  112 

O'Brien    o.    Gilchrist,    34   Me.    554;  Mass.  98. 

Shepherd   v.    Nay  lor,    5    Gray    591  ;  »  Horseman  v.  G.  T.  R.  R.  Co.,  31 

Dean  v.  King,  22  Ohio  St.  119  ;  Win-  U.  C.  Q.  B.  535. 
terport  G.  &  B.  Co.  v.  Schr.  Jasper, 
1  Holmes  99. 

21 


§33.] 


BILLS   OF   LADING. 


[chap.  III. 


CHAPTER  III. 

A  BILL  OF  LADING  IS  A  RECEIPT,  Continued.— EFFECT  OF 
THE  STATEMENT  OF  VALUE,  OF  THE  CLAUSE  "  SAID  TO 
CONTAIN,"  OF  STATEMENT  OF  THE  CCVNDITION  AT  TIME 
OF  SHIPMENT. 


Effect  of  the  statement  of  value  of  the 

goods,  §  33. 
Effect  of  knowledge  by  the  carrier  of 

the  true  value,  §  34. 
Shipper  not  bound  to  state  value  unless 

asked,  §  35. 
Legislation   recjuiring   the  shipper   to 

state  value,  §  36. 
Shipper,    if  asked,    must   state  value 

truly,  §37. 
Shipper  must  not  deceive  the  carrier 

as  to  value  by  the  manner  of  ship- 
ping, §  38. 
Illustrations  of  the  principle,  §  39. 
Further  illustrations,  §  40. 
The  question  of  fraud  may  be  for  the 

Court  or  for  the  jury,  §  41. 


Effect  of  the  qualification  "said  to 
contain,"  §  42. 

Effect  of  the  statement  "received  in 
good  order  and  condition, ' '  generally, 
§43. 

Statement  refers  to  external  or  appa- 
rent condition,  §§  44,  45. 

The  reason  for  the  rule,  §  46. 

The  statement  of  condition  is  not  con- 
clusive, §  47. 

Illustrations  of  the  principle,  §  48. 

The  statement  is  prima  facie  evidence 
of  the  condition  and  puts  onus  on 
the  carrier  to  disprove,  §  49. 

A  promise  to  deliver  in  good  condition 
implies  receipt  in  same,  §  50. 

Effect  of  the  phrase  "  apparent  good 
condition,"  §§  51,  52. 


§  38.  The  statement  of  value  contained  in  the  bill  has  a  some- 
what different  effect  from  the  other  recitals  in  that  which  we 
have  called  the  receipt.  It  becomes  part  of  the  contract  of  car- 
riage rather  than  a  mere  receipt.  It  is,  no  doiibt,  in  the  absence 
of  other  proof,  ^jrfma/aci'e  evidence  that  the  goods  receipted  for 
were  of  the  value  stated,  but  further  than  this  it  often  becomes 
conclusive  even  as  between  the  original  contracting  parties. 
"  As  a  general  rule  the  valuation  of  cargo  in  the  bill  of  lading, 
without  fraud,  is  conclusive  between  the  owner  of  the  cargo 
and  the  owner  of  the  ship  in  the  adjustment  of  general  average 
at  the  home-port."^ 

'  Putnam,  J.,  in  Tudor  v.  Ma-  Note. — A  carrier  -was  alleged  to 
comber,  14  Pickering  (31  Mass.),  34.     have  received  at  Liverpool  a  box  of 

22 


CHAP.  III.]  BILL   OF   LADING   IS   A   RECEIPT.  [§  35. 

The  statement  of  value  is  seldom  found  to  be  in  excess  of  the 
true  value  when  the  goods  have  been  inj  ared  or  destroyed.  The 
effort  of  the  shipper  is  to  secure  the  lowest  rate  for  transporta- 
tion even  at  an  increase  of  risk  to  his  goods.  He,  therefore, 
ordinarily  places  a  low  estimate  upon  them  when  tendering 
them  for  shipment. 

§  34.  If  the  valuation  set  upon  the  goods  by  the  shipper  be 
known  to  the  carrier  to  be  less  than  the  true  one  and  the  parties 
agree  that  the  goods,  in  consideration  of  the  diminished  valua- 
tion, shall  be  carried  at  a  lower  rate,  the  statement  of  value  is 
conclusive  upon  the  parties.^  Where,  however,  the  carrier, 
knowing  the  value  of  the  goods,  fails  to  enter  it  in  his  receipt, 
he  cannot  rely  upon  a  stipulation  contained  therein  limiting 
his  liability  to  a  specific  amount,  in  reality  less  than  the  true 
value  of  the  goods,  because  the  value  has  not  been  declared  by 
the  shipper.2  Where  the  reduced  value,  on  the  other  hand,  is 
fixed  by 'the  shipper  with  a  view  to  obtaining  a  low  rate  of 
freight,  without  any  knowledge  on  the  part  of  the  carrier  that 
the  property  is  of  greater  value,  it  would  be  a  fraud  upon  the 
carrier  to  permit  a  recovery  of  a  greater  sum  than  that  fixed  by 
the  shipper.^ 

§  35.  There  is  no  obligation  upon  the  shipper,  when  tender- 
ing goods  for  transportation,  to  inform  the  carrier  of  their  value 
unless  he  is  asked  so  to  do.*     If  the  shipper  be  not  guilty  of 

merchandise  which  he  promised  to  ^  Kimber  o.  Southern  Ex.  Co.,  22 
deliver  at  New  Orleans.  The  invoice  l.a.  Ann.  Rep.  158  ;  Southern  Ex.  Co. 
accompanying  the  bill  of  lading  was  v.  Newby,  36  Ga.  635  ;  Stoneman  v. 
offered  in  evidence  to  prove  the  value  Erie  p..  R.  Co.,  52  N.  Y.  429. 
of  the  contents  of  the  box  in  a  suit  for  ^  Harvey  v.  Terre  Haute  &  Indian- 
damages  for  its  loss.  The  evidence  apolis  R.  Co.,  74  Missouri,  538. 
was  rejected  on  the  ground  that  the  *  Levois  v.  Gale,  17  La.  Ann.  Rep. 
invoice  was  res  inter  alias  acta  and  302 ;  Phillips  v.  Earle,  8  Pickering 
not  emanating  from  the  defendant  as  (25  Mass.),  182;  Brooke  v.  Pickwick, 
the  bill  of  lading.  Watson  et  al.  v.  4  Ring.  218;  Southern  Ex.  Co.  v. 
Yates,  10  Martin's  La.  Rep.  687.  Crook,  44  Ala.  468;  Gorham  Mfg. 
•  Elkinsy.  The  Empire  Trans.  Co.,  Co.  v.  Fargo,  45  How.  Pr.  90;  C.  & 
2  W.  N.  C.  (Penna.  S.  Ct.)  403;  A.  R.  R.  Co.  v.  Baldauf,  16  Pa.  St. 
McCance  v.  L.  &  N.  R.  R.  Co.,  3  H.  67  ;  Relf  v.  Rapp,  3  W.  &  S.  21  ; 
&  C.  343  ;  34  L.  J.  E.xch.  39  ;  10  Baldwin  v.  L.  &  G.  AV.  S.  S.  Co.,  74 
Jur.  N.  S.  1058:  12  W.  R.  1086;  11  N.  Y.  125;  Parmelee  v.  Lowitz,  74 
L.  T.  N.  S.  426. 

23 


§37.] 


BILLS    OF   LADING. 


[chap.  III. 


fraud  or  concealment  as  to  the  nature  of  bis  goods,  it  is  the 
duty  of  the  carrier  to  inquire  their  vaUie,  should  he  desire 
information  respecting  it.^ 

§  36.  In  Massachusetts,  Maine,  and  other  vStates  the  shipper 
has  been  required,  by  legislation,  to  state  the  nature,  quality 
and  value  of  goods  shipped.^  In  England  the  statute  17  and 
18  Vict.  c.  31,  §  7,  provides  that  no  more  than  £50  shall  be 
recovered  for  loss  of  or  injury  to  a  horse,  unless  the  person 
shipping  it  shall,  at  time  of  delivery,  declare  it  of  higher  value, 
whereupon  the  railway  company  may  demand  a  proportionate 
increase  of  charge.  In  construing  this  Act  it  has  been  hekP 
that  a  knowledge  by  the  company  of  the  value  of  a  horse, 
not  derived  from  a  declaration  to  that  effect  by  the  sender, 
does  not  give  such  company  any  right  to  demand  an  increased 
rate  of  charge  under  said  section.  To  entitle  the  company  to 
demand  such  increased  rate  the  declaration  must  be  made  with 
an  intention,  by  the  sender  of  the  horse,  that  it  should  sO  operate. 

§  37.  If  the  shipper  be  asked  by  the  carrier  the  value  of  the 
goods  shipped,  he  must  answer  truly.^  Any  concealment  or 
misleading  answer  may  absolve  the  carrier  from  liability  for 
loss.'     The  latter  "  has  a  right  to  demand  from  the  employer 


111.  116;  Warner  v.  Western  Trans. 
Co.,  5  Robertson  (N.  Y.),  490. 

'  Merchants'  Desp.  Trans.  Co.  v. 
Belles,  80  111.  473;  Gorluim  Mfg.  Co. 
V.  Fargo,  45  How.  Pr.  (N.  Y.)  90. 

2  Mass.  St.  of  1818,  c.  122;  Gen. 
Sts.  (Mass.)  1860,  c.  52,  §§  18-21; 
Maine  St.  of  1821,  c.  14;    Rev.*  Sts. 

1850,  c.  35.     See,  also,  U.  S.  Sts.  of 

1851,  c.  44;  U.  S.  Rev.  Sts.  (1873) 
§§  4281-4289.  And  Story  on  Bail- 
ments, §  493  ;  Angell  on  Carriers,  §  90 
(and  Lathrop'snote);  Dunlopw.  Inter- 
national Steamboat  Co.,  98  Mass.  371  ; 
Pender  v.  Robbins,  6  Jones,  207  ; 
Walker  V.  Transportation  Co.,  3  Wall. 
150;  The  Barque  Whistler,  2  Sawyer 
(U.  S.  S.  Ct.),  348  ;  Hill  Manuf. 
Co.  V.  Providence  Steamship  Co.,  113 
Mass.  495;  Hill  Manuf.  Co.  v.  B.  & 

24 


L.  R.  R.  Co.,  104  Mass.  122;  Spring 
V.  Haskell,  14  Gray,  309;  Moore  v. 
American  Trans.  Co.,  24  Howard,  1  ; 
Hendrick  v.  Virginia  R.  R.  Co.,  48 
Ga.  545. 

^  Robinson  v.  Southwestern  Ry. 
Co.,  19  C.  B.  N.  S.  51;  11  Jur.  N. 
S.  390  ;  34  L.  J.  C.  P.  234  ;  '  13  W. 
R.  660. 

*  Phillips  V.  Earle,  8  Pickering  (25 
Mass.),  182;  Levois  v.  Gale,  17  La. 
Ann.  Rep.  302;  Camden,  etc.,  R.  R. 
Co.  V.  Baldauf,  16  Penna.  St.  67; 
Boskowitz  V.  Adams  Express  Co.,  5 
Cent.  L.  Jour.  58  ;  Green  v.  South- 
ern Express  Co.,  45  Georgia,  305 ; 
Little  V.  Boston,  etc.,  R.  R,  Co.,  16 
Am.  L.  Reg.  N.  S.  442  ;   66  Me.  239. 

^  Muser  v.  American  Express  Co., 
1    Fed.    Reporter,    382 ;    Hopkins   v. 


CHAP.  III.]  BILL   OF   LADING   IS    A   RECEIPT.  [§  39. 

such  information  as  will  enable  him  to  decide  on  the  proper 
amountof  compensation  for  his  services  and  risk  and  the  degree 
of  care  which  he  ought  to  bestow  in  discharging  his    rust 

S  38  Thouo-h  the  shipper  may  not  be  asked  the  value  ot  his 
croods,  he  nevertheless  must  not  deceive  or  delude  the  carrier 
by  co;cealing  their  value,  or  by  a  careless  treatment  o  them,  or 
by  his  manner  of  shipping  them.  For,  although  no  actual  fraud 
may  bave  been  intended,  such  concealment  or  deception  has 
been  held  to  be  constructive  fraud  upon  the  carrier  and  he  can- 
not be  made  answerable  in  case  of  a  loss  of  the  goods 

8  39  Thus,  the  shipper  must  not  deceive  or  mislead  the  car- 
rier by  sendimr  a  check  endorsed  in  blank  in  an  ordinary  letter ; 
by  sending  money  in  a  package  by  an  express  company  whose 
rules  the  shipper  knew,  required  money  to  be  put  up,  indorsed 
and  sealed  in  a  particular  way-  by  sending  money  concealed 
in  a  ba-  of  bay,'  or  in  a  box,  with  articles  of  no  value  f  or  by 
sending"  valuable  jewelry,  or  other  merchandise,  as  property 
apparently  of  small  value.^  No  one  has  a  right,  by  concealment 
or  artifice,  to  disarm  a  carrier  of  that  vigilance  which  the  nature 


Westcott,  6  Blatchford,  64  ;  Mather  v. 
American  Express  Co.,  2  Fed.  Rep. 
49 ;  Housten  &  T.  C.  R.  R.  Co.  v. 
Burke,  55  Texas,  323  ;  Cole  v.  Good- 
win, 19  Wendell  (N.  Y.),  251;  Fish 
V.  Chapman,  2  Georgia,  349;  HoUister 
I,.  Nowlen,  19  Wendell  (N.  Y.)  234. 

1  Sheldon,  J.,  in  Oppenheimer  & 
Co.  V.  U.  S.  Express  Co.,  69  Illinois, 
62  ;  and  see  Judson  v.  Western  R.  R. 
Co'.,  6  Allen  (88  Mass.),  486  ;  Cole  v. 
Goodwin,  19  Wend.  (N.  Y.)  251. 

2  C.  &  A.  R.'R.  Co.  V.  Thomp- 
son, 19  111.  578;  H.  &  T.  C.  R.  R. 
Co.  V.  Burke,  55  Texas,  323  ;  Cooper 
V.  Berry,  21  Ga.  526  ;  Great  Nor.  R. 
R.  Co.  V.  Shepherd,  14  Eng.  L.  & 
Eq.  Rep.  367;  Lebeau  v.  Gen.  St'm 
Nav.  Co.,  42  L.  J.  C.  P.  1  ;  8  L.  R. 
C.  P.  88;  Orndoft"  v.  Adams  Ex. 
Co.,  3  Bush  (Ky.),  194;  Am.  Ex. 
Co.    V.  Perkins,  42  111.  458  ;  Earnest 


V.  Ex.  Co.,  1  Woods,  579  ;  Coxe  v. 
Heisley,  19  Pa.  St.  243;  Hollister  u. 
Nowlen,  19  Wend.  (N.  Y.)  234; 
Everett  v.  Southern  Ex.  Co.,  46  Ga. 
303  ;  C.  &  C.  A.  R.  R.  Co.  v.  Mar- 
cus, 38  111.  219;  Orange  Co.  Bank 
V.  Brown,  9  Wend.  (N.  Y.)  85. 

3  Hayes  v.  Wells,  23  Cal.  185. 

■»  St.  John  V.  Express  Co.,  1  Woods, 

612. 

5  Gibbon  v.  Paynton,  4  Burr.  2298. 

6  C.  &  A.  R.  R.  Co.  V.  Thompson, 
19  111.  578;  Magnin  v.  Uinsmore, 
62  N.  Y.  35;  Earnest  v.  Ex.  Co.,  1 
Woods,  573;  Belger  v.  Dinsmore,  51 
N.  Y.  166. 

^  Everett  v.  Southern  Ex.  Co.,  46 
Ga.  303  ;  ib.,  37  ib.  688  ;  Sleat  v.  Tagg, 
5  Barn.  &  Alderson,  342;  Oppenheimer 
V.  U.  S.  Ex.  Co.  69  111.  62;  Pardee 
V.  Drew,  25  Wend.  (N.  Y.)  459.       i 

25 


§  40.]  BILLS   OF   LADING.  [CHAP.  III. 

of  the  case  demands,  or  deprive  him  of  the  increased  compen- 
sation for  a  more  hazardous  or  responsible  service.^  There  is, 
however,  no  fraud  or  concealment  if  a  carrier  be  told  that  a 
package  is  very  valuable,  though  he  be  not  told  that  it  contains 


money  ^ 


It  is  true  that,  where  no  artifice  is  used,  carriers  may  be 
bound  for  the  contents  of  all  packages  carried  by  them  where 
they  do  not  limit  their  liability  by  a  notice,  since  it  is  their  ' 
own  fault  if  they  do  not  inquire  respecting  their  value.  They  are, 
however,  entitled  to  assume  that  no  greater  value  is  contained 
in  a  package  than  its  outside  appearance  warrants,  which  is  as 
strong  a  representation  as  words.  "  If  the  owner  be  guilty  of 
any  fraud  or  imposition  in  respect  to  the  carrier,  as  by  conceal- 
ing the  value  or  nature  of  the  article,  or  deludes  him  by  his 
own  carelessness  in  treating  the  parcel  as  a  thing  of  no  value, 
he  cannot  hold  him  liable  for  the  loss  of  goods."^  Where  a 
box  containing  valuables  is  so  disguised  as  to  resemble  those 
which  generally  contain  only  articles  of  little  value  and  the 
carrier  is  thereby  imposed  upon,  it  is  well  settled  that  he  is  not 
liable  for  its  loss.*  Thus,  where  a  shipper  had,  as  she  alleged, 
packed  books,  fine  clothing,  jewelry,  etc.,  in  chests  such  as  emi- 
grants ordinarily  use  and  afterwards  sued  the  carrier  for  loss 
and  damage,  she  failed  to  recover,  since,  although  fraud  is  always 
partly  a  question  of  intent,  the  shipper's  expressed  intention  to 
have  her  boxes  appear  so  that  no  one  would  suspect  they  con- 
tained anything  valuable,  was  conclusive  in  that  regard  and 
relieved  the  carrier  from  liability. 

§  40.  Jewelry  was  shipped  on  a  vessel  in  a  trunk  of  the  kind 
generally  used  in  carrying  shoes  and  was  labelled  "  William  D. 
p^app— glass— this  side  up— with  care."  This  description  was 
held  "equivalent  to  an  assertion  that  the  trunk  (jontained  glass 
and,  if  untrue,  it  was  such  a  fraudulent  misrepresentation  as 
would  prevent  a  recovery  against  tlie  owner  of  the  ship,  even  if 
the  jewelry  were  purloined  by  the  captain  or  any  one  of  the  crew. 
A  common  carrier  is  answerable  for  the  loss  of  a  box  or  parcel 

•  Richards  v.  Wescott,  2  Bosworth        "  2  Kent,  603. 
(N.  Y.)  589.  ■*  Warner   v.  Western  Trans.   Co., 

•  2  Allen   V.   Sewall,    2   Wend.    (N.     5  Rob.  (N.  Y.  Supr.  Ct.)  490. 
Y.)  327. 

26 


CHAP.  III.]  BILL   OF   LADING   IS    A   RECEIPT.        '  [§  40. 

of  goods,  though  he  be  ignorant  of  the  contents  or  those  con- 
tents be  ever  so  valuable,  unless  he  made  a  special  acceptance. 
Even  that  principle  has  been  doubted ;  but  the  better  opinion 
is,  that  the  carrier  would  be  responsible.  This  is  reasonable, 
because  he  can  always  guard  himself  by  a  special  acceptance  or 
by  insisting  to  be  made  acquainted  with  the  general  nature  of 
the  articles  and  of  their  value,  before  he  consents  to  receive 
them.  If  he  omits  this  he  shall  not  escape  responsibility  be- 
cause of  his  own  negligence.  But  the  rule  is  subject  to  a  rea- 
sonable qualification.  If  the  owner  be  guilty  of  any  fraud  or 
imposition  in  respect  to  the  carrier  as  by  concealing  the  value 
or  nature  of  the  article,  or  by  deluding  him  by  his  own  care- 
lessness in  treating  the  parcel  as  a  thing  of  no  value,  the  carrier 
cannot  be  held  liable  for  the  loss  of  his  goods.  Such  an  imposi- 
tion destroys  all  just  claim  to  indemnity  ;  for  it  goes  to  deprive 
the  carrier  of  the  compensation  he  is  entitled  to,  in  proportion 
to  the  value  of  the  article  entrusted  to  his  care  and  the  conse- 
quent risk  he  incurs  and  it  tends  to  lessen  the  vigilance  the 
carrier  would  otherwise  bestow.  The  qualification  of  the  rule 
is  as  important  to  be  observed  as  the  rule.  It  is  absolutely 
necessary  for  the  protection  of  carriers  who  would  otherwise 
be  exposed  to  great  frauds.  With  what  show  of  justice  can  a 
man  ask  to  be  paid  for  an  article  of  great  value  when  he  has 
induced  the  carrier  by  a  false  assertion,  to  believe  that  it  id  of 
much  inferior  value  ?  .  .  .  .  In  cases  of  common  carriers  where 
there  is  no  notice,  the  better  opinion  seems  to  be  that  the  party 
who  sends  the  goods  is  not  bound  to  disclose  their  value,  unless 
he  is  asked.  But  the  carrier  has  a  right  to  make  the  inquiry 
and  to  have  a  true  answer,  and,  if  he  is  deceived,  and  a  false 
answer  given,  he  will  not  be  responsible  for  any  loss.  If  he 
makes  no  inquiries  and  no  artifice  is  used  to  mislead  him,  then 
he  is  responsible  for  any  loss  however  great  the  value  may  be.^ 
When,  however,  the  shipper  voluntarily  informs  the  carrier  of 
the  value  or  of  the  nature  of  the  article,  what  need  of  further 
inquiry?  Surely  he  cannot  complain  that  the  carrier  believes 
his  statement  to  be  true.  If  untrue,  it  would  be  a  violation 
of  every  principle  of  common  justice,  to  cast  the  responsibility 


Story  on  Bailments,  362. 

27 


§  42.]  BILLS    OF    LADING.  [CHAP.  III. 

upon  the  innocent  owner  [of  the  vessel]  merely  because  his 
agent  puts  faith  in  the  declarations  of  the  shipper.  And  what 
difference  is  there  in  effect  between  the  case  put,  and  labelling 
a  box  or  trunk  as  containing  an  article  differing  in  nature  and 
value  from  its  true  character?  The  one  is  as  likely  to  delude 
the  carrier  as  the  other  and  is  as  likely  to  be  used  as  a  means 
of  fraud."! 

If  a  station  agent,  however,  checks  a  trunk  as  ordinary  personal 
baggage,  having  reason  to  believe  that  it  contains  jewelry  and 
that  the  passenger  is  not  entitled  to  have  it  carried  as  personal 
baggage,  the  company  is  liable  in  case  of  negligence,  for  the 
value  of  its  contents.^ 

§  41.  The  question  whether  or  not  fraud  has  been  practised, 
may  be  either  for  the  court  or  the  jury.  If  the  facts  are  clear 
and  undisputed  and  sufficient  to  establish  a  fraudulent  conceal- 
ment or  imposition  by  the  shipper  upon  the  carrier  regardless 
of  the  shipper's  intention,  the  question  of  fraud  is  one  of  law 
for  the  court.  When,  however,  it  depends  on  conflicting  evidence, 
or  the  facts  are  merely  evidence  from  which  fraud  or  intent  of 
fraud  might  be  inferred  as  a  conclusion  from  a  variety  of  facts 
and  circumstances,  then,  although  the  facts  may  be  uncontra- 
dicted, the  question  of  fraud  is  a  question  of  fact  for  the  con- 
sideration of  a  jury.3 

§  42.  Where  money  is  transported  under  a  bill  containing  the 
statement"  said  to  contain"  a  given  amount,  the  recital  is  not  even 
prima  facie  evidence  that  the  amount  stated  was  received  by  the 
carrier.  Where  a  package  of  money  in  a  sealed  envelope  was  re- 
ceived by  acarrier  for  transportation  and  a  receipt  given  reciting 
that  the  package  was  "  said  to  contain  $1182.15,"  it  was  held  that 
the  recital  was  not  even  prima  facie  evidence  that  the  package 
did,  in  fact,  contain  the  said  sum,  although  there  was  evidence 
that  the  agent  of  the  carrying  company  was  requested  to  count 
the  money  at  the  time  of  shipment  and  he  declined  to  do  so.* 

'  Rogers,  J.  in  Relf  v.  Rapp,  3  W.         '  Muguin  v.  Dinsmore,  6  J.  &  Sp. 
&  S.  (Penna.),   25.      See  also  Coxe     (N.  Y.)  248. 
V.  Heislcy,  7  Harris  (Penna.),  243.  *  Fitzgerald  v.  Adams  Express  Co., 

2  Cent.  Trust  Co.  v.  Wabash   etc.     24  Indiana,  447. 
R.  R.  Co.,  39  Fed.  Rep.  417  ;  Jacobs 
V.  Tutt,  33  Id.  412. 
28 


CHAP,  m.]  BILL   OF   LADISG   IS    A   RECEIPT.  K  44. 

In  a  Pennsylvania  case  the  endorsement,  "said  to  contain 

$800,"  made  on  a  package  by  an  ^''P^^f  ^^^l^^' ^tJto 
was  held  to  be  evidence  of  value  in  a  snit  to  recover  the  lo  s 
Tf    he    ackage.    Hake,  P.  J.,  in  delivering  the  opuuon  sajd: 
"On  nurture  consideration  we  are  unable  to  agree  w,lh  the 
aSn":t  for  the  defendant,  that  the  words  'saul    o  contain 
■RSOO-  in  a  receipt  given  by  an  express  company  for  a  package 
I  t,l tec^to  their^caro,  arc  not  evidence  of  the  amount  which 
h    package  contained,  in  a  snit  brought  to  recover  damages  for 
ts  los       If  the  plaintiff  had  stated  orally,  when  the  package 
wis  delivered,  that  it  held  $800,  and  that  the  deicndants  had 
faUed  to  reply  he  would  have  been  entitled  to  presume  that  they 
w  re  willing  to  rely  on  his  good  faith  without  counting  or  ot^   - 
wise  verifying  the  amount,  and  the  introduction   of  the  alle. 
Tation  into  a  receipt  written  by  the  defendants,  makes  tlie  case 
Cch  stronger  agahist  them.     If  the  plaintiff  had  claimed  more 
than  $300,  the  defendants  might  with  reason  have  «1>«'1 ;»  *« 
limitation  in  the  receipt  as  conclusive,  and    hey  cannot,  afte. 
ma^g  part  of  the  contract  for  one  p„rpose,shut  it  out  because 

it  makes  against  them."'  .     ,  •    ti,    i,;ii  ti,„t  the 

8  48  Of  the  acknowledgment  contained  in  the  bill,  that  the 
goods  have  been  received  by  the  carrier  "  in  good  order  and 
fondition"  or  "  in  good  order  and  well  conditioned,'  three  pro- 
positions  may  be  affirmed. 

First-The  statement  refers  to  the  external  or  to  the  appar- 
ent condition  of  the  goods.  _  •.  1    •     v,^f 
Second-As  between  the  original  parties,  the  recital  is  not 
conclusive  proof  of  good  condition. 

Third-It  is  vrirna  facie  evidence  of  the  fact  and  raise,  a  pie- 
snmption  that  the  goods  were  in  the  condition  stated  the  o.m. 
of  rebutting  which,  is  on  the  carrier  giving  the  bi     of  lading. 
^44  The  first  proposition  has  been  stated  by  Mr.  Chief  Justice 
SHAW,m  the  case  of  Hastings  ..  Pepper,^  thus:  "The  signing 
of  a  bill  of  lading  acknowledging  to  have  received  the  goods 
in  question,  in  good  order  and  well  conditioned,  is  vnma  facie 
evidence  that  as  to  all  circumstances  which  were  open  to  inspec- 
tion and  visible,  the  goods  were  in  good  order,  but  it  does  not 

1  Weil  ..  Express  Co.,  7  Phila.  Rep.  '  H  P-^ering,  41. 

88.  29 


§  45.*]  BILLS   OF   LADING.  [CHAP.  III. 

preclude  the  carrier  from  showing,  in  case  of  loss  or  damage, 
that  the  loss  proceeded  from  some  cause  which  existed  but  was 
not  apparent  when  he  received  the  goods  and  which,  if  shown 
satisfactorily,  will  discharge  the  carrier  from  liability.  But  in 
case  of  such  loss  or  damage,  the  presumption  of  law  is,  that  it 
was  occasioned  by  the  act  or  default  of  the  carrier  and  of  course 
the  burden  of  proof  is  upon  him  to  show  that  it  arose  from 
some  cause  existing  before  his  receipt  of  the  goods  for  carriage 
and  for  which  he  is  not  responsible." 

The  Supreme  Court  of  the  United  States  set  the  seal  of  its 
approval  to  this  statement  of  the  law  by  adopting  it  verbatim 
in  the  opinion  of  the  court  delivered  by  Mr.  Justice  Wayne  in 
the  case  of  [kelson  v.  Woodruff.^  Here  the  facts  were  as  fol- 
lows :  Certain  lard  was  shipped  on  board  the  "  Maid  of  Orleans" 
of  which  E"elson  and  others  were  the  owners.  The  bills  of 
lading  recited  that  the  .goods  had  been  shipped  in  good  order 
and  condition.  Cross-libels  were  filed— the  owners  claiming 
freight  for  the  cargo  as  stated  in  the  bill,  the  consignees  claim- 
ing damage  for  the  non-delivery  of  a  large  part  of  the  lard.  It 
was  contended  that  the  lard  had  not  been  in  good  order  when 
put  on  board,  inasmuch  as  it  was  then  in  a  liquid  state  and  had 
in  that  condition  been  put  into  barrels,  which,  with  the  heat  of 
the  weather,  had  started  them  and  had  caused  leakage  during 
transportation  and  that  the  leakage  had  not  been  caused  by 
neglect.  Testimony  was  submitted  showing  the  eflect  of  heat 
and  the  barreling  of  lard  in  a  liquid  state  in  producing  more 
than  usual  leakage.  It  was  held  that  such  proofs  were  appli- 
cable, although  the  bills  of  lading  recited  that  the  lard  was 
shipped  in  good  order  and  condition. 

§  45.  The  construction  given  to  the  clause  by  Mr.  Chief  Jus- 
tice Shaw  has  been  followed  and  confirmed  by  other  decisions, 
holding  that  the  words  "  in  good  order,"  refer  only  to  the  ex- 
ternal or  apparent  condition  of  the  goods  and  that  such  words 
create  no  contract  with  reference  to  the  condition  of  contents  of 
packages,  bales,  boxes,  etc.^    External  appearance  is  not  a  true 

>  1  Black,  156.     See  also  The  Dela-  Ann.  Rep.  411  ;  West  v.  Stm.  Berlin, 

-ware,  14  Wallace,  601.  3  Iowa,  532 ;  Currell  v.  Johnson,  12  La. 

*  The  Prosperino  Palasso,  29  L.  T.  290 ;  Moore  v.  Harris,  2  Quebec    L. 

N.  S.  622;  Gauche  v.  Storer,  14  La  Rep.  147  ;  The  Peter  der  Grosse,  1 
30 


CHAP.  IIT.]  BILL   OF   LADING   IS    A   RECEIPT.  [§  47. 

test  of  internal  condition^  and  the  clause  of  the  bill  can  be 
applied  to  the  latter  only  so  far  as  it  may  be  inferred  from  the 
former.^  For  example,  applied  to  the  shipment  of  cotton,  the 
phrase  means  externally  in  good  shipping  condition  at  the  time 
it  is  received  by  the  carrier  but  does  not  refer  to  or  warrant 
the  internal  quality  or  condition  of  the  cotton  in  the  bales.^ 

§  46.  The  reason  for  the  rule  is  plain.  To  extend  the  appli- 
cation of  his  receipt  for  goods  "  in  good  order,"  etc.,  to  contents 
of  shipments  would  be  to  bind  the  carrier  to  a  statement  made 
upon  information  derived  solely  from  the  shipper  or,  to  compel 
the  carrier  to  open  every  bale,  box  or  package  presented  for 
transportation.  The  former  course  is  unreasonable,  the  latter 
unlawful^  as  well  as  unreasonable. 

"  The  adoption  of  the  principle  that  the  bill  of  lading  is  con- 
clusive on  the  carrier,  not  only  as  to  the  apparent  but  also  as  to 
the  actual  condition  of  the  goods,  would  impose  on  him  the 
necessity,  for  self-protection,  of  opening  every  box  of  merchan- 
dise to  examine  and  ascertain  the  condition  of  its  contents 

before  he  receives  it The  bulk  of  every  package  would 

have  to  be  broken  up  and  examined,  and  the  contents  of  every 
box,  of  merchandise  of  the  most  delicate  texture,  opened  and 
handled,  before  a  bill  of  lading  could  be  safely  signed.  Public 
policy,  therefore,  prohibits  a  rule  which  would  be  productive 
of  such  results  and  which,  instead  of  benefiting,  would  inflict 
an  injury  upon  the  community."" 

§  47.  We  may  now  pass  to  the  second  proposition,  namely, 
that  the  statement  in  the  bill,  (whether  of  a  railroad  company 
or  other  carrier)  that  goods  have  been  received  in  good  order 
is  not  conclusive  as  between  the  original  parties.  It  .may  be 
explained  or  contradicted  by  parol  evidence.^     In  the  case  of 

L.  R.  Probate  Div.  414,  34  L.  T.  N.         '  Carson  v.  Harris,  4  Greene  (Iowa)) 

S.  749  ;  Vaughan  v.  630  Casks  Sherry  516. 

Wine,    7  Benedict    Reps.   506  ;     Aus         ^  Keith  v.  Amende,  1  Bush,  455. 

V.   Kempf,    10  Benedict  Rep.  (U.  S.         ^  Bradstreet  v.  Heran,   2  Blatch.  C. 

D.    C.)     231;     Blaine    v.    Mailer,   2  C.  116. 

Juta's  Rep.  Cape  of  Good  Hope,  E.         *  O'Brien  v.  Gilchrist,  34  Me.  554. 

D.  133;  Porter  v.  Robinson,  lb.  16;         *  Breck,  Justice,  in  Gowdyu.  Lyon, 

Italian  Bark  Vincenzo  T.,  10  Benedict  9  B.  Mon.  (Ky.)  112. 

(U.  S.  D.  C),  228.  s  Mitchell  v.    U.    S.    Ex.    Co.,    46 

31 


§  49.]  BILLS    OF   LADING.  [CHAP.  III. 

Mcintosh  V.  Gastenhofer,^  Mr.  Justice  Martin  says:  "The 
general  rule  is  certainly  that  when  goods  are  acknowledged 
to  be  received  in  good  order  and  are  delivered  in  bad,  the 
carrier  is  responsible,  but  it  is  open  to  the  exception  that  he 
may  show  that  the  damage  arose  from  causes  which  existed 
anterior  to  the  bailment,  or  from  defect  in  the  thing  itself." 

§  48.  It  is  competent  to  show  by  evidence  aliunde  that 
the  goods  were  not  in  good  order  when  shipped;^  to  show 
that  they  w^ere  damaged  before  the  carrier  received  them,^ 
whether  tliat  damage  was  done  by  the  shipper  or  by  any  pre- 
vious carrier  of  the  goods  ;^  to  show  that  the  casks  in  which 
liquids  were  shipped  were  unsound,  or  badly  made  so  as  to 
cause  leakage  f  or  even  to  prove  that  the  carrier  wished  to 
receipt  for  the  goods  as  in  poor  condition,  but  w^as  not  allowed 
to  do  so.®  In  a  case  where  the  goods  were  inj  ured  in  their  delivery 
to  the  carrier  and  he  saw  and  knew  it,  it  has  been  held  that  the 
carrier  cannot  give  evidence  to  contradict  his  bill  of  lading 
receipting  for  goods  in  good  order  unless  it  be  proved  that  a 
fraud  or  imposition  was  practised  upon  him.  This  would  not 
be  such  a  latent  defect  as  would  excuse  him  from  liability  for 
loss  beyond  that  which  was  occasioned  by  the  peculiar  nature 
of  the  article  carried,''' 

§  49.  The  third  proposition  may  be  more  accurately  stated 
thus :  though  not  conclusive,  the  bill  is  yet  prima  facie  evidence 

Iowa,  214  ;  Barrett  v.  Rogers,  7  Mass.  also,  Turner  v.   Ship  Black  Warrior, 

297;  The  Adriatic,  16  Blatchf.  C.  C.  1  McAllister,  181. 

424 ;   Nelson    v.   Woodruff,    1    Black,  ^  "Wood  v.  Perry,  1  Weigh.  (Ohio), 

156;   Clark  v.  Barnwell,  12  Howard,  240;  Kimball  v.  Brander,  6  La.  711  ; 

272;   Hastings  i;.  Pepper,   11    Picker-  Ship  Howard  u.  Wissman,  18  Howard, 


ing  (Mass.),  41  ;  C.  &  A.  R.  R.  Co 
V.  Benjamin,  63  111.  283  ;  Porter  v.  C 
&  N.  W.  R.  R.  Co.,  20  Iowa,  73 
Stm.  Missouri  v.  Webb,  9  Mo.  193 
Bradstreet  v.  Heran,    1  Abbott,  209 


231. 

3  O'Brien  v.  Cilchrist,  34  Me.  554; 
Bissell  V.  Price,  16  111.  408. 

<  G.  W.  R.  R.  Co.  V.  McDonald, 
18  111.  172. 


Richards    v.    Doe,     100    Mass.    524;         *  Nelson  y.  Stephenson,  5  Duer  (N. 

Choate  V.  Crowninshield,   3   Clifford's  Y.),  538. 

C.  C.  Rep.    184;   Ellis   v.  WiUard,    9         «  Tierney  v.  N.  Y.  C.  &  H.  R.  R. 

N.   Y.    529;   Wetzler   v.  Collins,    70  Co.,  67  Barb.  (N.  Y.)  538. 
Me.  290.  ^  Warden  v.  Greer,   6  Watts,  424. 

*  2  Robinson  (Louisiana),  403.    See  See  Barrett  v.  Rogers,  7  Mass.  297. 

82 


CHAP,  in.]  BILL    OF    LADING    IS   A    RECEIPT.  [§  51. 

that  SO  far  as  the  goods  were  visihle,  or  open  to  inspection,  they 
were  in  good  order  and  condition  when  shipped.  The  presump- 
tion thns  raised,  throws  th6  burden  upon  the  carrier  of  showing 
that  the  goods  were  not  in  the  condition  stated  in  his  bill  of 
lading.*  In  the  case  of  Bond  v.  Frost,  Mr.  Justice  Slidell  says : 
"If  it  be  admitted  that  the  clause  in  the  bill  of  lading  as  to  con- 
dition of  goods  when  received  is  open  to  explanation,  still  it  is 
certain  that  the  receipt  throws  the  burden  of  proof  upon  the 
vessel  and  its  recital  cannot  be  overthrown  or  qualified  except 
by  evidence  of  a  very  clear  and  convincing  character.  The 
recital  of  the  bill  of  lading  is  not  to  be  weakened  by  a  conjec- 
tural showing."^ 

Again,  it  has  been  held  that  the  carrier  cannot  stop  b}^  show- 
ing that  goods  were  delivered  to  him  in  insufficient  packing 
and  that  the  defect  was  not  discoverable  by  him.  He  must  go 
further  and  show  that  the  injury  to  the  goods  actually  resulted 
from  such  insufficient  packing.^ 

§  50.  A  bill  of  lading  which  contains  no  admission  of  the  re- 
ceipt of  goods  in  good  order  or  a  promise  so  to  deliver  them, 
but  provides  that  upon  delivery  of  the  cargo  in  sound  condition 
the  freight  shall  be  paid,  is  to  be  construed  as  impliedly  admit- 
ting the  receipt  of  the  cargo  in  good  order.'* 

§  51.  The  admission  as  to  the  condition  of  the  goods  has  been 
occasionally  qualified  by  the  use  of  the  phrase  "  in  apparent 

'  Choate   v.   Crowninsheld,   3    Clif-  51  Ala.  394  ;   Archer  v.  The  Adriatic, 

ford,    C.   C.   184;     I.    C.    R.    Co.    v.  9  Cent.  L.  Jour.  201  ;   Carson  w.  Har- 

Cowles,  32  111.  116;  Tarbox  v.  East-  .ris,  4  G.  Greene,  516  ;  Mitchell  v.  U. 

em  Stm.  Co.,  50  Me.   339;  Breed  v.  S.  Ex.   Co.,  46  Iowa,   214;    West  v. 

Mitchell,  48  Ga.  533  ;  Montgomery  v.  The  Berlin,  3  ib.  532 ;   The  Freedom, 

Ship  Abbey  Pratt,   6  La.  Ann.  Rep.  L.   R.   3   P.   C.   594;  The  Olbers,   3 

410  ;  Hart  u.  Ship  Jane  Ross,  5  ib.  264;  Ben.    148;     Vaughan    v.    330    Casks, 

Ship   Rappahannock  v.   Woodruff,  11  7  ib.  506;   Price  ".  Powell,  3  N.  Y. 

ib.     698;     Whitney    v.    Gauche,    ib.  322;   C.  &  A.  R.  R.  Co.  v.  Benjamin, 

432;   Austin  v.  Talk,  20  Texas,  164;  63  111.  283  ;  Coulthurst  v.   Sweet,   L. 

Richards    v.    Doe,    100    Mass.     524;  R.    1    C.    P.   649;    The    Ship    Black 

Arend  v.  Liverpool,  etc.  Stm.  Co.,  64  Hawk,    9  Benedict    (U.  S.    D.    C), 

Barbour    (N.    Y.),    118;     Nelson    v.  207;  The  Pacific,  Deady  (D.  C),  17. 

Woodruff,    1   Black,   156;    Nelson   v.  «  6  La.  Ann.  Rep.  801. 

Stephenson,  5    Duer    (N.   Y.),   538;  "  Zerega  i;.  Poppe,  1  Abbott  Bros., 

The  Adriatic,  16  Blatchf.  C.  C.  424;  397. 

M.   &  W.  P.   R.    R.  Co.   V.  Moore,  *  The  Ship  Zone,  2  Sprague,  19. 

3  33 


§  52.]  BILLS   OF    LADING.  [CHAP.  III. 

good  order,"  etc.  The  interpretation  given  by  the  Courts  to 
the  simple  statement  in  "good  order,"  etc.,  would  seem  to 
render  this  qualification  practically  unnecessary  and  the  inser- 
tion of  the  word  "  apparent"  does  not  change  the  legal  eflect  of 
the  clause.^ 

"  When  a  common  carrier  receives  goods  for  shipment  and 
gives  the  consignor  a  bill  of  lading  in  which  the  goods  are  de- 
scribed to  be  '  in  apparent  good  order,'  we  see  no  reason  why 
the  bill  of  lading  should  not  be  held  prima  facie  evidence  that 
the  goods  were  in  good  condition."^ 

Where  goods  are  shipped,  described  as  "  in  apparent  good 
order  and  condition,"  and  are  delivered  by  the  carrier  in  the 
same  apparent  external  good  order,  the  burden  of  proving  that 
the  goods  are  not  as  delivered,  is  thrown  upon  the  shipper. 
In  the  case  of  The  California  the  libellants  claimed  for  goods 
which  they  alleged  were  in  one  of  five  cases  described  in  the 
bill  of  lading  "  as  shipped  in  apparent  good  order,  value  and 
contents  unknown."  The  goods  were  not  delivered  by  the  car- 
rier, although  the  case  was.  It  was  held  that  the  libellants 
were  bound  to  show  that  the  goods  were  in  the  case  when  it 
was  delivered  to  the  carrier,  and  having  only  given  evidence 
tending  to  show  that  they  were  therein  when  the  case  was  de- 
livered to  the  truckman  to  be  taken  to  the  vessel  and  no  other 
evidence,  the  libel  should  be  dismissed.^ 

§  52.  The  efiect  of  the  phrase  was  considered  under  a 
somewhat  unusual  state  of  facts  in  the  case  of  Evans  v.  The 
Atlanta  and  West  Point  Railroad  Company.*  This  suit  was 
brought  for  the  recovery  of  daVuages  to  certain  corn  delivered 
at  St.  Louis,  Mo.,  under  a  bill  of  lading  which  recited  that  the 
corn  was  "  received  in  apparent  good  order  on  board  good 
stearaiboat  Emma  C.  Elliott  to  be  conveyed  from  St.  Louis  to 
Memphis  and  from  thence  by  the  Memphis  &  Charleston  R.  R. 
with  connecting  R.  R.'s  to  be  delivered  in  like  good  order  at 
the  company's  depot  at  La  Grange,  Ga."     The  corn  was  de- 

'  The  Oriaamme,  1  Sawyer,  1  76.  ^  The  California,  2  Sawyer's  Reps. 

«  111.  Cent.  R.  R.  Co.  v.  Cobb,   72     (D.  C.  Oregon),  12. 
111.  148.     See   also  Blade  v.  C,    St.        *  56  Georgia,  498. 
P.  &  F.  du  L.  R.  Co.,   10   Wiscon- 
sin, 4. 

34 


CHAP.  III.]  BILL   OF   LADING   IS   A   RECEIPT.  [§  52. 

livered  at  La  Grange  badly  damaged.  The  suit  was  brought 
against  the  defendant  as  the  last  company  which  received  the 
corn  in  good  order.  On  this  bill  of  lading  it  was  held  that 
there  was  no  presumption  that  the  corn  was  received  by  the 
defendant  in  good  order.  The  indorsements  on  the  bill,  as  to 
the  condition  of  the  corn,  by  the  agents  of  the  connecting  car- 
riers, were  not  receivable  as  evidence  and  hence  there  was  no 
legal'  proof  as  to  the  condition  of  the  corn  when  it  passed  into 
the  custody  of  the  defendant  company. 

35 


54.] 


BILLS    OF   LADING. 


[chap.  IV. 


CHAPTER  IV. 

EFFECT  OF  QUALIFYING  CLAUSES,   "CONTENTS 
UNKNOWN,"   "AVEIGHT  UNKNOWN,"  ETC. 


"Quantity,  etc.,  unknown,  generally," 

§53. 
"Contents  unknown,"  as  affecting  the 

description  of  goods,  §  54. 
"  Contents  unknown,"  as  affecting  the 

statement  of  the  condition  of  goods, 

§55. 
"  Contents  and  gauge  unknown,"  §  56. 


"  Contents  and  value  unknown,"  §  57. 

"Weight  unknown,"  §  58. 

"Contents  and  weight  unknown," 
§  59. 

"  Quantity  and  quality  unknown," 
§60. 

"Weight,  contents,  and  value  un- 
known," §§  61,  62. 


§  53.  The  receipt  in  the  bill  of  lading  is,  as  we  have  seen, 
either  prima  facie  or  conclusive  evidence  of  the  reception  of 
certain  goods  by  the  carrier  and  of  the  quantity,  weight,  quality, 
value  and  condition  of  those  goods.  To  diminish  the  force  of 
these  statements  or  admissions,  carriers  have  frequently  added 
thereto  a  qualification  in  their  bills  to  the  effect  that  the  quan- 
tity, weight,  quality,  or  value  is  "  unknown."  This  qualifica- 
tion is  either  stamped  on  the  face  of  the  bill  or  is  made  to  form 
one  of  its  written  or  printed  clauses.  In  effect,  it  means  that 
the  quantity,  etc.,  recited  in  the  bill  was  so  represented  to  the 
carrier  when  accepted  by  him  for  transportation,  but  that  he 
intends  to  assume  no  personal  responsibility  for  the  truth  or 
accuracy  of  the  statements. 

The  qualifying  clause  may  affect  the  description  of  the  goods 
or  the  statement  of  their  quantity,  quality,  weight,  value,  or 
condition.  While  intended  by  the  carrier  to  relieve  himself 
from  responsibility  for  the  definite  recitals  of  the  bill,  it  some- 
times operates  to  his  disadvantage.  We  may  examine  the  deci- 
sions in  which  the  effect  of  each  of  the  several  clauses  used,  has 
been  construed  and  determined. 

§  54.  The  most  common  clause  is  "  contents  unknown."  If 
the  carrier  guards  his  acknowledgment  of  the  receipt  of  goods 
by  saying  "contents  unknown,"  so  that  he  does  not  charge 
36 


CHAP.  IV.]  EFFECT    OF   QUALIFYING  CLAUSES.  [§  55. 

himself  with  the  receipt  of  any  goods  in  particular  the  bill  of 
ladTg  abne  is  not  evidence,  either  of  the  quantity  of  the  goods 
or  of  property  in  the  consignee.^ 

Where  a  bill  of  lading  receipted  for  certain  silk  handker- 
chiefs  as  "domestics"  and  over  the  signature  were  inserted 
the  words  "contents  unknown,"  it  was  held  that  the  earner 
need  only  answer  for  the  missing  package  according  to  its  actual 
contents.^  Where  a  bill  of  lading  stated  that  certain  hogsheads 
contained  bacon  but  said  also  "contents  unknown,  it  was  held 
that  the  carrier  did  not  admit  the  fact  to  be  as  stated  and  no 
presumption  arose  as  to  the  true  state  of  the  goods  at  the  time 
of  shipment.3  .    „ 

In  an  action  for  the  value  of  a  "package  of  merchandise 
which  a  carrier  failed  to  deliver  and  which,  in  fact,  was  valuable 
iewelry,  it  was  held,  the  bill  reciting  that  the  contents  were 
unknown,that  if  the  carrier  has  made  no  inquiry  and  no  artifice 
has  misled  him,  he  will  be  responsible  for  any  loss,  however 
great  the  value  of  the  article." 

§  55  Where  to  the  clause  "  received  in  good  order  and  con- 
dition" was  joined  "contents  unknown"  in  a  bill  of  lading,  it 
was  held,  by  the  Supreme  Court  of  the  United  States,  that  "  the 
acknowledgment  of  the  master  as  to  the  condition  of  the  goods 
when  received  onboard  extended  only  to  the  external  condi- 
tion of  the  cases  excluding  any  implication  as  to  the  quantity 
or  quality  of  the  article,  condition  of  it  at  the  time  received  on 
board,  or  whether  properly  packed  or  not  in  the  boxes,  and  it 
the  evidence  on  the  part  of  the  defence  laid  a  foundation  for  a 
reasonable  inference  that  the  damage  resulted  from  an  impei-- 
fection  in  the  goods  when  packed  in  the  cases,  or  had  occurred 
previously  to  their  being  shipped  on  board,  the  burden  was 
thrown  upon  the  libellants  [shippers]  to  rebut  the  inlerence. 

A  bill  of  lading  acknowledged  the  receipt  "in  good  order 
and  condition"  of  casks  containing  bristles,  which  were  covered 

.  Haddow  ..  Parry,  3  Taunton,  303        *  Levois  ..  Gale,  1  7  La.  Ann.  Rep. 

^    "lasJett  .  Ruark,  3  La.  Ann.  Rep.         ^  Clark..  Barnwell  12  Howard,  272. 
gg^  Opinion  by  Mr.  J.  Nelson. 


3  Vernard   v.   Hudson,   3    Sumner, 
405  (U.  S.  C.  C). 


37 


§  57.]  BILLS   OF   LADING.  [CHAP.  IV. 

with  matting  secured  by  cords,  and  engaged  to  deliver  them  in 
like  good  order  and  condition  to  the  consignees.  The  bill  of 
lading  also  contained  the  clause  "  weight  and  contents  un- 
known." The  court  held  that  there  was  no  admission  bj  the 
master  in  the  bill  of  lading  as  to  the  condition  of  the  goods, 
beyond  that  visible  to  the  eye,  or  apparent  from  handling  the 
casks,  or  their  outside  protection,  whatever  that  might  be,  and 
that  the  burden  of  proof  was  on  the  shipper,  in  the  first  instance, 
to  prove  the  condition  of  the  goods  at  the  time  of  shipment.^ 
The  shipper  is,  however,  under  no  obligation  to  ofter  in  evi- 
dence more  than  the  bill  of  lading  containing  the  admission 
"  received  in  good  order  and  well  conditioned — weight  and  con- 
tents unknown" — until  the  carrier  has  given  affirmative  evi- 
dence tending  to  show  that  the  actual  condition  of  the  goods 
at  the  time  of  shipment  was  not  as  stated.^ 

§  56.  In  a  bill  of  lading  for  a  specified  number  of  barrels  of 
molasses,  the  addition  of  the  words  "  contents  and  gauge  un- 
known" cannot  be  considered  as  implying  more  than  ignorance 
of  the  quantity  or  quality.  The  fact  of  there  being  molasses 
in  the  barrels  is  not  to  be  implied.^ 

§  57.  Where  a  bill  of  lading  receipted  in  the  margin  in 
writing  for  "  articles  30  bbls.  eggs"  and  the  printed  portion  con- 
tained the  words  "  contents  and  value  unknown,"  it  was  held 
that  the  latter  words  meant  simply  that  the  condition,  kind, 
quality  and  value  of  the  eggs  were  unknown,  and  that  against 
a  bona  jide  indorsee  of  the  bill  the  carrier  was  estopped  from 
denying  that  the  barrels  contained  eggs.* 

A  carrier  signed  bills  for  701  tons  of  cattle  bones,  "  weight 
and  contents  unknown."  On  arrival  at  destination  there  were 
but  386  tons  on  board  the  carrier's  vessel.  The  captain  oflfered 
to  deliver  this  amount  (which  he  claimed  and  offered  to  prove 
was  all  that  he  had  received),  on  condition  of  receiving  real 
freight  for  the  386  tons  and  dead  freight  for  the  210  tons. 
The  House  of  Lords  held  that  "  the  bills  of  lading  signed  by 

'  The  Columbo,  3  Blatchf.  521.  <  Miller  v.  H.  &  St.  J.  R.  Co.,  24 

2  Baxter  v.  Leland,  Abbott's  Adm.  Hun  (N.  Y.),  607  ;  but  see  Nichal  & 

Rep.  (N.  J.  Dist.  Ct.)  348.  Co.  r.  Castle,  9  Beav.    H.    C.    Rep. 

*  Nelson  v.  Stephenson,  5  Duer  (N.  321  for  the  rule  in  England. 

y.),  538. 

38 


CHAP.  IV.]  EFFECT    OF   QUALIFYING   CLAUSES.  [§  59. 

the  master  were  prima  facie  evidence  that  the  quantities  of 
bones  mentioned  in  them  had  been  received  on  board,"  and 
that  "though  the  master  had  not  authority  to  sign  bills  of 
lading  for  a  greater  quantity  of  goods  than  is  actually  put  on 
board,  yet,  as  it  is  not  to  be  presumed  that  he  has  exceeded  his 
duty,  his  signature  to  the  bills  of  lading  is  sufficient  evidence 
of  the  truth  of  the  contents  to  thi^ow  upon  the  ship  owner,  the 
onus  of  falsifying  them  and  proving  that  he  received  a  less 
quantity  of  goods  to  carry  than  is  thus  acknowledged  by  his 
agent."  The  ship  owner,  having  satisfactorily  rebutted  this 
presumption  by  evidence,  was  held  entitled  to  recover  both  his 
real  and  dead  freight.^ 

The  statement  in  a  bill  "  shipped  in  apparent  good  order 
and  condition  five  cases  of  merchandise,  value  and  contents 
unknown,"  has  reference  to  the  external  condition  of  the  cases 
and  excludes  any  inference  that  the  carrier  thereby  admits  any 
thing  as  to  the  quantity  or  quality  of  the  contents  of  the  cases 
at  the  time  of  delivery  to  him,  beyond  what  was  visible  to  the 
eye  or  apparent  from  handling  the  sarae.^ 

§  58.  If,  in  addition  to  a  statement  of  a  specific  weight  of 
goods,  the  expression  "  weight  unknown"  be  found  in  the  bill 
of  lading,  the  carrier  is  only  bound  to  deliver  the  weight 
actually  shipped  ,3 — the  statement  of  the  specific  weight  being 
interpreted  in  such  a  bill  to  mean  "  about"  or  "  estimated  at" 
•so  much,  without  admitting  such  estimate  to  be  exact.  The 
clause  "I  do  not  know  the  weight,"  inserted  by  a  master  in  a 
bill  of  lading  given  for  about  200  tons,  casts  on  the  consignee 
the  burden  of  proving  that  he  did  not  receive  what  was  actually 
shipped.^ 

§  59.  Where  there  is  a  memorandum  of  the  supposed  or  real 
weight  on  the  margin,  and  the  words  "contents  and  weight 
unknown"  are  inserted  in  the  body  of  the  bill,  the  latter  exclude 
the  inference  that  the  carrier  is  to  be  bound  by  the  memorandum,^ 
and  there  is  no  admission  by  the  master  as  to  the  condition 

»  McLean  v.  Fleming,  Law  Rep.  2  ^  Schultz  v.  The  Pietro  G.,  40  Fed. 
H.  L.  (S.  C.  App.)  128.  Rep.  497. 

2  The  California,  2  Sawyer  (Dist.  ^  xhe  Andover,  3  Blatchford,  303 
Ct.  Oregon),  12.  (U.  S.  C.  C). 

^  Shepherd  v.  Naylor,  5  Gray,  591. 

39 


§  60.]  BILLS   OF   LADING.  [CHAP.  IV. 

of  the  goods,  beyond  that  visible  to  the  eye  or  apparent  from 
handling  the  casks,  boxes,  or  other  outside  covering  whatever 
it  may  be.  When,  in  such  a  case,  a  question  arises  as  to  the 
condition  of  the  contents  of  casks  or  bales,  the  burden  rests 
on  the  shipper  in  the  first  instance  to  prove  their  condition  at 
the  time  of  shipment.'  Where,  however,  a  bale  of  cloth  was 
shipped  under  such  a  bill  and,  on  delivery  to  the  consignee,  it 
was  found  that  the  outer  and  inner  coverings  were  injured  and 
that  a  piece  of  cloth  had  been  removed,  it  was  held  that  it  was 
incumbent  on  the  carrier  to  show  that  the  injury  was  only  ex- 
ternal.^ 

Where  the  agent  of  the  carrier  in  point  of  fact,  knew  what 
the  contents  of  the  boxes  were  and  failed  to  exercise  the  pre- 
caution necessary  to  their  safe  delivery,  the  carrier  cannot 
shelter  himself  behind  the  words  "  weight  and  contents  un- 
known" in  the  bill  of  lading.^ 

§  60.  The  quantity  and  quality  of  certain  wheat  covered  by 
a  bill  of  lading  was  stated  therein  to  be  "  unknown"  On  an 
alleged  failure  to  deliver  the  whole  amount  shipped,  the  burden 
was  upon  the  shippers  to  show  the  quantity  of  wheat  delivered 
for  transjDortation.'* 

A  bill  of  lading  with  the  phrase  "  in  good  order  and  condi- 
tion" qualified  by  the  words  "quantity  and  quality  unknown," 
neither  admits,  as  against  the  ship  owners,  that  the  goods  were 
shipped  in  such  condition,  nor  furnishes  the  proof  required  by 
law  from  the  shippers,  as  to  the  state  of  the  goods  when  put  on 
board. ^ 

A  ship  was  chartered  to  carry  a  cargo  of  grain  from  A. 
to  B.,  for  a  freight  of  75.  "  per  imperial  quarter  delivered" 
and  the  charter  party  provided  that  "  in  the  event  of  the  cargo 
or  any  part  thereof  being  delivered  in  a  damaged  or  heated 
condition,  the  freight  shall  be  payable  upon  the  invoice  quan- 

'  The  Columbo,  3  Blatchford,  521  ;         ••  Compart    v.   Steamship  Prior,    2 
Wentworth  v.  Ship  "Reahn,"  16  La.     Federal  Reporter,  819. 
Ann.  Rep.  18.  «  The  Prosperino  Palasso,  29  L.  T. 

2  The  Energie,  2  Asp.  Mar.  Law  N.  S.  622  ;  The  Ida,  32  L.  T.  N.  S. 
Cases,  296.  541. 

'  Brig.     jNLij'    Queen,    Newberry's 
Adm.  (U.  S.  D.  C),  464. 
40 


CHAP.  IV.]  EFFECT   OF   QUALIFYING    CLAUSES.  [§  61. 

tity  taken  on  board,  as  per  the  bill  of  lading,  or  half  freight 
upon  the  damaged  or  heated  portion  at  the  captain's  option." 
Under  this  charter-party  2368  imperial  quarters  were  shipped 
on  board  at  A.,  and  the  master  signed  a  bill  of  lading  with  the 
following  words  written  at  the  foot,  (as  was  proved  to  be 
usual  in  the  grain  carrying  trade)  "  quantity  and  quality  un- 
known." The  ship  experienced  bad  weather  and  80  quarters 
were  damaged  by  heating.  It  was  held  that  the  master  was 
entitled  to  be  paid  freight  on  the  invoice  quantity  taken  on  board 
uotwithstandino:  the  words  written  at  the  foot  of  the  bill.^ 

§  61.  Where  a  bill  of  lading  purported  to  be  for  fifty  tons  of 
coal  and  contained  a  printed  clause  "  weight,  contents,  and 
value  unknown,"  and  similar  words  were  written  above  the 
signature  of  the  master,  it  was  held  that  this  did  not  amount 
to  an  admission  by  the  master  that  he  had  received  fifty  tons 
of  coal  on  board.^ 

The  force  of  the  qualification  in  the  bill  of  lading  that  the 
contents,  weight,  value,  etc.,  of  the  goods  are  unknown  has 
been  fully  considered  and  ably  discussed  in  the  opinion  of  Sir 
C.  Sargent,  C.  J.,  in  the  case  of  Nicol  v.  Castle.  The  question 
arose  under  the  English  statutes,  making  the  representations 
in  the  bill  conclusive  against  the  carrier.  Sir  C.  Sargent 
says  :^ — 

"  The  question,  is  the  bill  of  lading  in  the  hands  of  the  plain- 
tiff's consignees  for  valuable  consideration  conclusive  evi- 
dence as  against  the  defendant  of  the  shipment  of  fifty  tons, 
turns  upon  the  construction  to  be  put  on  the  Indian  Bill  of 
Lading  Act  9,  of  1856.  The  English  act  on  the  same  subject 
(18  and  19  Vict.  c.  cxi.),  of  which  the  Indian  act  is  a  literal 
copy,  has  come  under  the  consideration  of  the  English  courts 
of  law  on  several  occasions,  but  never  so  far  as  we  are  aware, 
except  incidentally,  on  the  point  on  which  this  case  turns, 
namely,  the  liability  of  the  master  signing  the  bill  of  lading  to 
a  consignee  for  value  under  section  3  of  the  act.  Section  1 
gives  a  consignee  of  the  goods  or  the  indorsee  of  the  bill  of  lading 


'  Tully  V.  Terry,  Law  R.  8  C.  P.  Exch.  267;  36  L.  J.  Exch.   149;   15 

684;  s.  c.  42  L.  J.  C.  P.  240.  W.  R.  1041. 

*  NIcol  &  Co.  V.  Castle,  9  Bom.  H.  ^  Vol.  ix.,  Bom.  H.  C.  Rep.  321. 
C.  Rep.  321  ;  Jessel  v.  Bath,  2  L.  R. 

41 


§  61.]  BILLS    OF   LADING.  [CHAP.  IV. 

(to  whom  the  property  is  intended  to  pass)  the  same  rights  of 
suit  as  if  the  contract  had  been  with  himself,  and,  therelbre,  in 
the  present  case,  as  the  bill  of  lading  does  not  amount  to  an 
admission  by  the  master  that  fifty  tons  of  coal  were  shipped  on 
board,  the  plaintiff  could  not,  as  a  simple  consignee  of  the  coal, 
recover  under  that  section  against  the  master  without  proving 
that  the  fifty  tons  were  actually  shipped.  Section  3,  however, 
places  a  consignee  or  indorsee,  who  has  given  value,  in  a  far 
better  position  as  regards  the  master  or  other  person  signing 
the  bill  of  lading.  It  says  that  in  their  hands  the  bill  of 
lading,  representing  goods  to  have  been  shipped  on  board,  shall 
be  conclusive  evidence  of  such  shipment  as  against  the  master 
or  other  person  signing  the  bill  of  lading,  notwithstanduig  that 
such  goods,  or  some  part  thereof,  may  not  have  been  so  shipped, 
unless  the  holder  of  the  bill  of  lading  shall  have  had  actual 
notice,  at  the  time  of  receiving  the  same,  that  the  goods  had 
not,  in  fact,  been  laden  on  board,  and  leaves  only  one  ground 
of  defence  open  to  the  person  so  signing  the  bill  of  lading  to 
plead,  namely,  that  the  misrepresentation  was  caused  without 
his  default  and  wholly  by  the  fraud  of  the  shipper. 

"  The  first  important  question,  then,  is,  what  was  the  amount 
of  coal  which  this  bill  of  lading  represented  as  having  been 
.  shipped  ?  Did  it  represent  to  third  persons  who  might  deal 
with  the  shipper  that  the  exact  amount  of  fifty  tons  of  coal 
had  been  shipped?  If  the  written  and  printed  words  are 
reconcilable,  as  they  must  be  taken  to  be  for  the  purposes  of 
this  argument,  we  are  at  a  loss  to  see  on  what  ground  it  can  be 
contended  that  the  bill  of  lading  taken  as  a  whole,  represents 
to  the  public  as  a  fact  on  which  they  may  rely,  that  fifty  tons 
of  coal  had  been  shipped.  Undoubtedly  the  bill  of  lading 
commences  by  representing  that  there  have  been  shipped  on 
board  the  steamship  '  Hutton,'  fifty  tons  of  coal,  but  the  repre- 
sentation referred  to  in  section  3  must,  we  think,  mean  the 
representation  made  by  the  whole  instrument.  This  appears 
from  the  preamble  which  says:  '  Whereas  it  frequently  happens 
that  the  goods  in  respect  of  which  bills  of  lading  purport  to  be 
signed,  have  not  been  laden  on  board,  and  it  is  proper  that  such 
bills  of  lading  in  the  hands  of  a  bona  fide  holder  for  value 
should  not  be  questioned  by  the  master  or  other  person  signing 
42 


CHAP.  IV.]  EFFECT    OF   QUALIFYING    CLAUSES.  [§  62. 

the  same,  on  the  groniid  of  the  goods  not  having  been  hiden.' 
Here,  however,  the  bill  of  lading  does  not  purport  to  be  signed 
by  the  master  in  respect  of  lift}'  tons  of  coal,  exactly.  The 
object  is  to  protect  the  bona  jide  holder,  without  notice,  and  to 
make  those  persons  liable  who  have  represented  to  him  through 
the  bill  of  lading;  that  a  certain  amount  of  goods  have  been 
shipped.  Here,  however,  the  bill  of  lading  gives  him  clear 
notice  that  the  master,  upon  -whose  signature  he  is  supposed  to  . 
rely,  does  not  admit  that  fifty  tons  were  shipped.  This  con- 
elusion  follows  irresistibly  from  the  previous  decisions  as  to  the 
eflect  of  the  printed  condition  or  the  written  words.  If  they 
are  reconcilable  and  the  bill  admits  of  reasonable  and  fair  ex- 
planation, it  cannot  be  said  that  the  bill  of  lading  was  signed 
by  the  master  in  respect  of  fifty  tons  of  coal.  But  it  was  said 
that  the  Act  prevents  the  master  from  guarding  himself  against 
the  efi:ect  of  the  written  words,  or,  in  other  words,  the  object 
of  the  Act  was  to  throw  on  him,  as  between  himself  and  bona 
jide  holders,  the  obligation  of  ascertaining  the  truth  of  the 
'  written  words.'  But  this  would  be  to  put  a  construction  on 
the  Act  far  beyond  the  object  as  stated  at  length  in  the  pre- 
amble, and  would,  in  our  opinion,  require  distinct  words  to  that 
eflect — words  which  are  certainly  not  to  be  found  in  this  Act. 

"  This  view  of  the  Act  is  adopted  by  the  Chief  Baron  and 
Mr.  Baron  Martin,  in  the  parallel  case  of  Jessel  v.  Bath,^ 
although  it  was  not  necessary  to  decide  the  question,  as  the 
action  was  against  a  person  who  had  not  signed  and  who  was 
held  by  the  Court  not  to  be  bound  by  the  person  signing. 
They  both,  however,  expressed  an  opinion  that  no  action  could 
have  been  brought  on  the  bill  of  lading,  under  section  3,  of  the 
Act,  even  against  the  person  signing.  We  are  of  opinion,  there- 
fore, that  this  question  should  be  answered  in  the  negative." 

§  62.  "A  mere  receipt  for  the  goods  without  the  words  'in 
good  order  and  condition,'  has  the  same  eftect,  notwithstanding 
the  addition  of  the  words,  '  weight,  contents  and  value  un- 
known.' Therefore  when  on  delivery,  the  goods  are  found 
to  be  injured,  it  will  be  presumed  that  they  were  properly 
packed  in  a  fit  state  for  transportation  unless  there  is  some- 

•  Law  R.,  2  Ex.  267. 

43 


§  62.]  BILLS   OF   LADING.  [CHAP.  IV. 

thing  in  their  appearance  or  condition  to  afford  ground  for 
a  contrary  inference  or  unless  some  evidence  to  that  effect  is 
given. "^ 

The  converse  of  the  rule  is  also  true.  Therefore,  where  the 
carrier  contracts  to  carry  certain  closed  cases  alleged  to  contain 
specific  goods  [linen],  but  adds  "  contents,  weight  and  value 
unknown,"  he  must  carry  the  cases  whatever  they  contain. 
"  The  effect  of  the  words  is  to  do  away  with  the  description  of 
the  goods  as  linen. '"^ 

*  English  V.  Ocean  Stm.  Nav.  Co.,         ^  Lebeau  v.  Gen.  Steam  Nav.  Co., 
2  Blatchford,  C.  C.  425 ;  The  Peter    42  L.  J.  C.  P.  1  ;  8  L.  R.  C.  P.  88. 
der  Grosse,  1  L.  R.  Prob.  Div   414; 
34  L.  T.  N.  S.  749. 

44 


CHAP,  v.]  BILL   OF   LADING   IS   A   CONTRACT. 


[§63. 


CHAPTER  V. 

A  BILL  OF  LADING  IS  A  CONTRACT-RULES  OF 
CONSTRUCTION, 


A  bill  of  lading  is  a  contract,  §  63. 

As  such  it  cannot  be  varied  in  its  terms 
by  parol  proof,  §  64. 

Nor  by  contemporaneous  verbal  agree- 
ments, §  65. 

Verbal  agreement  is  not  merged  where 
terms  are  omitted  by  mistake  from 
the  bill,  §  66. 

Illustrations  of  the  principle,  §  67. 

Variations  of  the  rule,  §  68. 


Parol  evidence  is  admissible  to  explain 
ambiguities,  §§  69,  70. 

Contract  is  to  be  gathered  from  the 
whole  instrument,  §  71. 

Modification  of  the  rule,  §  72. 

Reference  to  charter  party,  §§73,  74. 

Written  prevail  over  printed  provi- 
sions, §§  75,  76. 

The  bill  is  to  be  construed  according  to 
the  intention  of  the  parties,  §  77. 


S  63  A  bill  of  lading  is  more  than  a  receipt.  It  is  an 
agreement  for  a  consideration  to  transport  certain  goods  to  a 
specified  place  and  there  to  deliver  them  to  a  person  named  or 
to  his  order  or  assigns.  It  is  a  written  contract  for. the  per- 
formance of  a  certain  duty.^  The  contract  between  ship  and 
shipper  is  contained  in  the  bill  delivered  to  the  shipper  It  the 
bill  kept  bv  the  capfein  diifers  from  the  shippers  bill,  the 
latter  prevails  and  the  captain's  bill  must  fall.^  In  Dunn  v 
Branner,^  it  was  held  that  the  bill  does  not  create  the  contract 


'  Shaw  V.  Merchants'  N.  B.  of  St. 
L.,  8  W.  N.  C.  (Penna.),  221  ;  Hos- 
tetter  v.  Baltimore,  etc.,  R.  R-  Co., 
11  Atl.  Rep.  (Pa.),  609  ;  AVayland  v. 
Mosely,  5  Ala.  430 ;  Ontario  Bank  v. 
Hanlon,  23  Hun  (N.  Y.),  283  ;  Bishop 
V.  Empire  Trans.  Co.,  48  How.  Pr. 
(N.  Y.),  119  ;  Horrell  v.  Parish,  26 
La.'  Ann.  Rep.  6;  C.  &  N.  W.  R. 
R.  Co.  V.  N.  L.  Packet  Co.,  70  111. 
217;  Helliwell  v.  G.  T.  R.  W.  Co., 
lOBissel,  170;  Lawrence  v.  McGregor, 


Wright  (Ohio.),  193;  Huntingdon  u. 
Dinsmore,  4  Hun  (N.  Y.),  66; 
Ricketts  V.  B.  &  O.  R.  R.  Co.,  61 
Barb.  (N.  Y.),  18;  Knowles  v. 
Dabney,  105  Mass.  437  ;  Randall  v. 
Dabney,  ib. ;  Wallace  v.  Matthews, 
39  Ga.  617  ;  Swett  v.  Black,  2  Spragues 
Dec.  49 ;  Wilde  v.  Mer.  Desp.  Trans. 
Co.,  47  Iowa,  272. 

2  Ontario  Bank  v.  Hanlon,  23  Hun 
(N.  Y.),  283. 

3  13  La.  Ann.  Rep.  453. 

45 


§  65.]  BILLS   OF   LADING.  [CHAP.  V. 

between  the  shipper  and  the  carrier  and  that  it  has  only  been 
adopted  as  a  convenient  mode  of  establishing  the  contract.  In 
Swift  V.  Pacific,  etc.,  Steamship  Co.,  it  was  held  that  if  the  bill 
of"  lading  made  out  by  the  carrier  does  not  conform  to  a  special 
contract  between  the  parties,  the  contract  and  not  the  bill  must 
control.' 

§  64.  Parol  evidence  is  inadmissible  to  vary  the  terras  or 
legal  import  of  a  bill  of  lading  which  is  free  from  ambiguity 
as  to  the  destination  of  the  property  or  the  freight  to  be  paid 
or  any  other  of  the  terms  of  the  contract  for  carriage.^  The 
rule,  however,  that  the  bill  cannot  be  varied  by  parol,  is  binding 
only  upon  the  parties  to  it.  The  rule  does  not  apply  to  other 
persons  whose  rights  are  incidentally  affected  by  the  bill  of 
lading.^  The  principle  that  the  bill  as  a  contract  is  not  to  be 
varied  by  parol  evidence,  does  not  exclude  testimony  showing 
that  it  is  the  contract  of  other  persons  than  those  in  whose  name 
it  is  executed.  Thus  a  plaintiff  was  permitted  to  charge  by 
parol  evidence,  the  owner  of  a  steamboat  with  a  loss  under  a 
bill  given  by  the  master  in  his  own  narae.^ 

§  65.  The  bill  of  lading,  receipt,  or  other  voucher  expressing 
the  terms  and  conditions  of  transportation,  accepted  without 
objection  by  the  shipper  from  the  carrier,  in  the  absence  of 
proof  of  fraud  or  mistake,  is  to  be  taken  as  the  sole  evidence  of 
the  final  agreement  of  the  parties  and  by  it  their  duties  and 

•  106  N.  Y.  206.  &  Cin.  K,  R.  Co.  v.  Remmy,  13  Ind. 

2  Fitzhugh  V.  Wiraan,  9  N.  Y.  559  ;  518  ;  White  v.  Asliton,  51  N.  Y.  280  ; 

Collender  v.   Dinsmore,   55   ib.    200;  Simmons  d.  Law,  8  Bosw.  213  ;  Arnold 

Sayward    v.     Stevens,     3     Gray    (64  v.   Jones,   26   Texas,    335 ;    Tudor  v. 

Mass.),     97;     Creery    v.    Holly,    14  Macomber,  14  Pick.  (Mass.)  34;  Wolfe 

Wend.  (N.  Y.),  26 ;   Sproat  v.  Don-  v.  Myers,  3    Sandf.    7 ;    Wayland  v. 

nell,  26  Maine,  187;   Centers.  Torry,  Moseley,  5  Ala.  430;   Higgins  v.  U. 

8  Martin's  La.  Rep.  206  ;  Hostetter  r.  S.  M.  S.  S.  Co.,  3  Blatchf.  (U.  S.  C. 

Baltimore,  etc.,  R.  R.  Co.,   11    Atl.  C),  282;  Wayne  v.  Str.  Gen.  Pike, 

Rep.  (Pa.),  609;  Camden  &  Atl.  R.  16  Ohio,  421;  Scovill  v.  Griffith,   12 

R.  Co.  V.  Bausch,  6  Cent.  Rep.  121 ;  N.  Y.  509  ;  Dixon  v.  C.  &  I.  R.  R. 

Petrie  v.  Heller,  35  Fed.  Rep.  310;  Co.,  4  Bissell's  Rep.  137  ;   Adams  Ex. 

Pecks  V.  Dinsmore,  4  Porter  (Ala.),  Co.  v.  Boskowitz,   107  111.  660;   Ide 

212;  Babcock  v.  May,  4  Ohio,  346;  v.  Sadler,  18  Barb.  32. 
May  v.  Babcock,  ib.  334;  McTyer  v.        ^  The  Phebe,  1   AVare's  Rep.  (D. 

Steele,  26  Ala.  487;»White  v.  Van-  C.  Me.),  263. 

kirk,  25  Barbour  (N.  Y.),   16  ;  Ind.         *  McTyer  v.  Steele,  26  Ala.  487. 
46 


CHAP,  v.]  BILL   OF   LADING   IS    A    CONTRACT.  [§  65. 

liabilities  must  be  regulated.     Resort  caimot  be  had  to  prior  or 
contemporaneous  parol  negotiations  or  agreements  to  vary  its 
terms.i     The  parties  are  supposed  to  have  written  out  all  that 
they  deemed  necessary  to  give  full  expression  to  their  intention. 
Thus,  where  it  was  not  claimed  that  there  was  anything  on  the 
face  of  the  instrument  which  required  the  master  of  a  vessel  to 
take  the  inside,  rather  than  the  outside,  route  from  New  York 
to  Baltimore,  there  could  be  no  proof  allowed  of  a  preliminary 
agreement  to  establish  such  an  obligation.     If  the  shipper  in- 
tended to  make  this  a  part  of  the  contract  he  should  have  had 
the  provision  embraced  in  the  bill.     Nor  is  evidence  of  an  agree- 
ment of  the  master  to  go  by  the  inland  route  properly  admissible.^ 
Where  a  carrier  stipulated  in  writing  that,  in  forwarding  goods 
beyond  his  route,  he  should  have  power  to  forward  by  any  safe 
and  prudent  customary  mode,  it  has  been  held  to  be  improper 
to  permit  a  prior  or  contemporaneous  oral  obligation  to  control 
the  stipulation  and  fix  upon  him  a  different  duty.^   Thus  where 
a  bill  of  lading  gave  a  ship  leave  to  call  at  any  port  or  ports, 
one  of  its  usual  ports  being  known  to  both  parties  to  be  under 
quarantine,  a  verbal  agreement  not  to  call   there  cannot   be 

shown.^  . 

In  the  recent  English  case  of  Ledue  v.  Ward,  the  plamtifls 
shipped  goods  on  defendant's  vessel,  the  bill  of  lading  stating 
that  the  goods  were  shipped  for  delivery  at  Dunkirk  on  board 
a  vessel  tying  at  Fiume  and  bound  for  Dunkirk,  with  liberty 

•The    Delaware,    14    Wall.    579;  i>.  Peterson,  30  Ala.  608 ;  May  r.  Bab- 

LoncT  V   N    Y.  C.  R.  R.  Co.,  50  N.  cock,  4  Ohio,  334 ;   Ricketts  v.  B.  & 

Y    76-   O'Bryan  v.   Kinney,   74  Mo.  O.  R.  R.  Co.,  61  Barbour  (N.  Y.),  18  ; 

125  ;  Germania  Fire  Ins.  Co.  v.  M.  &  Shaw  v.  Gardner,  12  Gray  (78  Mass.), 

C.  R.  R.  Co.,  72  N.Y.  90  ;  Germania  488;   Helliwell  v.  G.  T.  R.  R.  Co.,  10 

Fire  Ins.  Co.  v.  M.  &  C.  R.  R.  Co.,  7  Bissell,  170;  Arnold  v.  Jones,  26  Tex. 

Hun  (N.Y.),  233;  White  v.  Ashton,  51  335  ;   Security  Bank  of  Minn.  v.  Lutt- 

N.  Y.  280 ;  Hill  V.  S.  B.  &  N.  Y.  R.  gen,  29  Minn.  363. 

R.  Co.,  73  N.  Y.  351  ;    O'Rourke  v.-  ^  White  v.  Vankirk,  25  Barbour  (N. 

Tons  of  Coal,  1  Fed.  Rep.  623  ;  The  Y.),  16  ;  White  v.  Ashton,  51  N.  Y. 

Lady  Franklin,  8  Wall.  325  ;  Giraudel  280. 

V.  Mendiburne,  3  Martin's  La.  Rep.  "  Hinkley  v.  N.  Y.  C.  &  H.  R.  R. 

N.  S.  509  ;  Ind.  &  Cin.  R.  R.  Co.  v.  Co.,  56  N.  Y.  429. 

Remmy,  13  Ind.  518 ;  Louisville  &  C.  *  The  Sidonian,  34  Fed.  Rep.  805  ; 

R  R.  Co.  V.Wilson,  119  Ind.  352;  Cox  S.  C.  35  Fed.  Rep.  534. 

47 


§  QQ.]  BILLS   OF   LADING.  [CHAP.  V.  . 

to  call  at  any  x'^orts  in  any  order.  The  ship,  instead  of  proceed- 
ing direct  to  Dunkirk,  sailed  for  Glasgow  and  was  lost  oft"  the 
mouth  of  the  Clyde.  At  the  trial  evidence  Avas  introduced  to 
show  that  the  shippers  of  the  goods  at  the  time  when  the  bill 
of  lading  was  given,  knew  that  the  vessel  w^as  intended  to 
proceed  to  Glasgow.  It  was  held  that  this  evidence  was  not 
admissible  to  vary  the  terms  of  the  bill  of  lading,  which  imported 
a  voyage  direct  from  Fiume  to  Dunkirk,  subject  to  the  liberty  to 
call  at  any  ports  substantially  within  the  course  of  such  a  voy- 
age and  that  Glasgow  was  not  one  of  the  ports  intended.* 

§  66.  Where  words  are,  however,  omitted  from  the  bill  by 
mistake,  the  verbal  agreement  made  before  the  bill  was  issued, 
is  held  not  to  have  been  merged  in  the  bill.  An  illustration 
will  be  found  in  the  following  case:  A  shipper  made  an  oral 
contract  with  the  agent  of  a  carrier  to  transport  goods  in  a  re- 
frigerator car.  The  bill  which  was  not  received  by  the  shipper 
until  it  was  too  late  to  remove  the  goods  from  the  train,  omitted 
the  words,  "  refrigerator  car  through."  When  spoken  to  on 
the  subject  the  agent  said  that  the  omission  made  no  difference 
and  that  the  car  would  go  through  all  right.  The  goods  were 
removed,  during  transit,  to  a  box  car  and  thus  injured.  Here 
the  duty  to  carry  in  a  refrigerator  car  through  was  imposed 
upon  the  carrier  and  his  failure  to  so  carry,  rendered  him  liable.^ 
In  Hill  V.  Syracuse  B.  &  N".  Y.  R.  R.  Co.,^  the  plaintiff"  delivered 
to  the  defendant,  a  quantity  of  wool  in  pursuance  of  a  verbal 
contract  by  which  it  was  to  be  shipped  within  two  weeks. 
Afterwards,  he  received  from  defendant's  agent  receipts  for  the 
wool,  but  examined  them  at  the  time  no  farther  than  to  see 
whether  the  facts  were  correctly  stated.  The  next  day  he 
noticed  conditions  upon  the  receipts,  one  of  which  was,  that 
the  defendant  should  not  be  liable  for  any  delay.  The  wool  was 
not  shipped  for  nearly  two  months  and  its  market  value  greatly 
declined.  It  was  held  that  the  parol  agreement  was  not 
merged  in  the  receipts  and  that  the  plaintiff"  was  entitled  to 
damages. 

•  L.  R.  20  Q.  B.  D.  475.  =»  8  Hun  (N.Y.),  296  ;  Hill  v.  S.  B. 

2  Shiff  r.  N.  Y.  C.  &  H.  R.  R.  Co.,     &  N.  Y.  R.  R.  Co.,  73  N.  Y.  351. 
16  Hun,  278. 

48 


CHAP,  v.]  BILL   OF   LADING   IS    A    CONTRACT.  [§  67. 

§  67.  In  Bostwick  v.  B.  &  0.  R.  R.  Co.,  goods  were  shipped 
under  a  verbal  contract  to  be  carried  from  Cincinnati  to  New- 
York,  "  all  rail."  After  parting  with  the  goods  the  shipper  was 
given  a  bill  of  lading  of  difterent  import,  limiting  the  carrier's 
liability  and  expressing  on  its  face  that  by  accepting  it  the 
shipper  agreed  to  its  conditions.  It  was  here  held  that  the 
prior  parol  agreement  was  not  merged  in  the  bill  of  lading 
and  that  if  the  shipper  "  had  expressly  assented  to  the  terms 
of  the  bill  of  lading  subsequentl}'^  delivered  to  him,  such 
assent  would  operate  as  a  change  of  the  terms  of  the  contract 
originally  made,"  but  when  the  verbal  contract  had  been  acted 
upon,  the  mere  receipt  of  the  bill  of  lading  and  inadvertently 
omitting  to  examine  the  printed  conditions,  were  not  sufficient 
to  conclude  the  shipper  from  showing  what  the  actual  agree- 
ment was  under  which  the  goods  had  been  shipped.' 

In  Hamilton  v.  West  N.  C.  R.  R.  Co.,^  a  carrier  agreed  to 
furnish  cars  for  the  transportation  of  cattle  on  a  certain  day, 
but  failed  to  have  them  at  the  place  specified.  The  cattle  were 
subsequently  shipped.  The  court  held  that  the  prior  agree- 
ment was  not  merged  in  a  bill  of  lading  issued  when  the  cattle 
were  shipped.  In  Knox  v.  Kinetta,^  grain  was  shipped  on  the 
Ninetta,  on  condition  that  no  other  cargo  should  be  taken  and 
that  it  should  be  carried  directly  to  its  destination  without 
deviation.  The  master  deviated  and  took  an  additional  cargo 
of  wood  stowed  on  deck,  whereby  it  was  alleged  that  the  grain 
was  damaged.  The  court  held  that  the  agreement  neither  to 
deviate  nor  to  take  additional  cargo  could  be  proved  and  if  it 
were  established,  the  vessel  was  liable  for  the  damage. 

In  Purcell  v.  Southern  Express  Co.,*  where  a  receipt  was 
given  for  goods  exempting  the  carrier  from  liability,  it  was 
held  not  conclusive  as  to  what  the  contract  of  carriaffe  was 
and  that  proof  might  be  introduced  to  show  that  the  receipt 
did  not  contain  the  terms  of  the  contract. 

Where  a  bill  of  lading  was  signed  by  the  consignor  and  not 
by  the  carrier  it  was  held  that  though  the  instrument  made 
the  carrier  liable  as  at  common  law,  he  could  give  evidence 

'  45  N.  Y.  712,  reversing  the  judg-  "  Crabbe  (U.  S.  D.  C.  Pa.),  534. 
ment  in  55  Barb.  137.  *  34  Gtcrgia,  315. 

«  96  N.  C.  398. 

4  49 


§  68.]  BILLS   OF   LADING.  [CHAP.  V. 

of  a  parol  contract  by  which  the  goods  were  to  be  carried  at 
the  owner's  risk.* 

§  68.  In  Pennsylvania  it  has  been  held  that  where  there  is  a 
bill  of  lading  in  the  usual  form  and  certain  verbal  arrange- 
ments are  made  at  the  time  when  the  bill  is  given,  both  should 
be  submitted  to  the  jury  from  which  to  discover  the  contract^ 
and  in  Maryland  a  carrier  was  allowed  to  prove  that  he  stated 
in  a  conversation  with  the  shippers,  that  he  would  take  no 
risk ;  that  the  shipment  was  at  the  parties'  own  risk ;  that  he 
would  not  insure  the  freight  and  that  if  they  were  not  satisfied 
with  the  terms  he  would  rather  set  the  goods  on  the  wharf.^ 

A  bill  of  lading  containing  a  modification  of  a  verbal  con- 
tract previously  made  by  the  parties  and  accepted  by  the 
shipper  without  noticing  the  change,  does  not  supersede  the 
prior  verbal  contract  which  may  be  proved  by  the  shipper  in  an 
action  against  the  carrier.*  Where,  however,  the  bill  of  lading  is 
executed  prior  to  a  protest  against  a  modification  of  the  original 
parol  contract,  the  parties  are  bound  by  it.  Thus  a  carrier  agreed 
to  carry  certain  staves  of  a  specified  size  for  a  fixed  price  per 
1000.  During  his  absence,  as  alleged,  the  shipper  placed  larger 
ones  in  the  vessel  so  that  he  could  carry  only  66,110  staves 
instead  of  90,000.  He  remonstrated  and  was  assured  that  it 
would  be  made  all  right.  He  gave  a  bill  of  lading  and  pro- 
tested against  it  after  it  was  signed.  The  court  held  that  if 
his  allegations  were  true,  he  should  not  have  signed  the  bill  of 
lading,  or  if  he  did,  should  have  protested  against  it  at  the 
time  of  signing  it  and  upon  his  bringing  an  action  on  the  con- 
tract as  above  signed,  nonsuited  him.' 

While  evidence  of  a  difl:erent  agreement  by  parol  is  not  ad- 
missible to  vary  a  bill  of  lading,  yet  the  written  contract  may 
be  avoided  or  modified  by  showing  fraud  in  the  execution  of 
the  bill.^  Thus  in  a  case  of  transportation  on  the  Mississippi 
River  the  shipper  agreed  with  the  captain  of  the  steamboat 

•  Gage  V.  Jaqueth,   1   Lansing  (N.  *  Mo.  Pac.  Ry.  Co.  v.  Beeson,  30 

Y.),  207.  Kan.  298. 

2  Union  R.  R.  &  Trans.  Co.  v.  *  Rogers  v.  Roberts,  27  La.  Ann. 
Riegel,  23  P.  F.  Smith  (Pa.),  72.  Rep.  85. 

3  Atwelly.  Miller,  11  Md.  357.  «  Creery     v.     Holly,     14    Wendell 

(N.  Y.),  26. 
50 


CHAP,  v.]  BILL    OF   LADING   IS    A    CONTRACT.  [§  60. 

that  if  at  any  point  of  the  trip  (owing  to  lateness  of  the  season) 
it  should  become  impracticable  or  unsafe  to  proceed,  he  might 
store  the  goods  and  return  and  falsely  stated  to  the  captain 
that  this  agreement  was  contained  in  the  bill  of  lading,  where- 
upon the  captain  signed  it,  it  was  held  that  the  said  agreement 
entered  into  and  became  part  of  the  written  contract.^ 

§  69.  Though  evidence  is  inadmissible  to  vary  the  terms 
of  the  bill  of  lading,  yet  parol  testimony  which  tends  to  ex- 
plain the  terms  of  a  contract  that  are  ambiguous,  or  which  w^ill 
help  to  rectify  a  mistake,  will  be  received.^  So  also,  evi- 
dence of  custom  cannot  be  received  to  vary  or  contradict  the 
terms  of  the  contract  where  they  are  express  or  plain,  but  it 
will  be  admitted  to  add  new  terms  as  to  which  the  writing  is 
silent.' 

It  was  held  competent  to  give  parol  testimony  to  explain  the 
meaning  of  the  letters  "  C.  0.  D.,"  marked  on  the  property 
shipped  and  its  eftect  on  the  contract  of  carriage.  Additional 
words,  however,  which  are  not  technical,  but  ordinary  and  well 
defined  in  meaning,  cannot  be  explained  or  varied.*  It  was  held 
that  parol  testimony  was  admissible  merely  to  explain  a  writ- 
ing in  a  case  where  the  owners  of  a  steamboat  contracted  to 
carry  100  bales  of  cotton  from  a  certain  landing  and  the  captain, 
finding  1 34  bales,  took  them  all  and  the  clerk  gave  an  informal 
receipt  for  134  bales,  evidently  not  intended  to  embody  the  con- 
tract of  carriage  and  containing  no  restrictions.^ 

In  Savannah,  etc.,  R.  R.  Co.  v.  Collins,^  parol  testimony  was 
admitted  to  explain  the  words  "  Care  R.  R.  Ag't,  Callahan,"  at 
the  end  of  a  receipt  given  by  a  railroad  company  for  certain 
merchandise  delivered  to  it  for  transportation.  In  Balfour  v. 
Wilkins'^  it  was  held  that  evidence  of  the  facilities  for  loading 
at  the  port  of  lading  was  admissible  to  show  in  what  sense  the 
words  "  rainy  days"  were  used  in  the  bill  of  lading. 

'  West    V.     Steamboat     Berlin,     3  Ala.  221 ;   Blodgett  v.   Abbott,  40  N. 

Iowa,  532.  W.  Kep.  491. 

2  The  Delaware,  14  Wall.  579;  "  Collender  v.  Dinsmore,  55  N.  Y. 
McFadden  r.  Mo.  Pao.  Ry.  Co.,  92  200. 

Mo.  343;  The  Wanderer,  29  Fed.  ^  Cooper  u.  Berry,  21  Georgia,  526. 
Rep.  260.  6  3  s.  K.  Rep.  416. 

3  C.  &  T.   R.  R.   Co.  V.   Kidd,  29        '  5  Sawyer,  C.  C.  429. 

51 


N 


§  70.]  BILLS    OF   LADING.  [CHAP.  V. 

§  70.  Ill  Baltimore,  etc.,  Co.  v.  Brown,  it  is  said  by  Chief  Jus- 
tice Thompson  that  a  bill  of  lading  is  not  "such  a  complete  con- 
tract as  to  exclude  all  testiraon}^  of  what  is  not  expressed  and 
necessary  to  a  complete  contract.  On  its  face  it  is  but  a  memoran- 
dum and  not  in  form  a  contract  inter  partes.  It  is  doubtless  an 
instrument  fitted  for  the  occasions  in  which  it  is  usually  em- 
ployed and  while  what  it  clearly  expresses  may  not  be  contra- 
dicted by  oral  testimony  unless  under  the  qualification  of  fraud 
or  mistake,  yet,  there  is  no  rule  which  excludes  testimony  to 
explain  it  and  to  show  what  the  real  contract  was,  of  which  it 
is  but  a  note  or  memorandum."^ 

In  the  case  of  the  "Star  of  Hope,"^  where  there  was  a  written 
contract  to  stow  certain  goods  under  deck  and  a  verbal  agree- 
ment that  the  articles  mentioned  in  the  bill  of  lading  should  be 
put  in  the  captain's  cabin,  it  was  held  that  such  a  supplementary 
agreement  could  be  proved  by  parol,  as  it  did  not  contradict 
the  terms  of  the  bill  of  lading  and  is  a  new  and  independent 
condition.  It  was  further  held  that  the  libellants  might  recover 
on  another  ground,  as  the  Court  said  that  "  it  was  evident  from 
all  the  circumstances  of  the  case,  that  the  words  '  in  captain's 
cabin'  were  omitted  by  mistake." 

It  has  even  been  held  in  the  United  States  Circuit  Court,  that : 
"In  construing  a  written  contract  Courts  have  the  right  to  hear 
to  a  certain  extent  parol  evidence  as  to  the  circumstances  under 
which  a  contract  was  made  for  the  purpose  of  putting  them- 
selves in  the  place  of  the  contracting  parties  and  determining 
the  purport  and  effect  of  the  language  used."^ 

Where  there  is  no  ambiguity  in  the  language  of  a  contract, 
parol  testimony  will  not  be  admitted.  Thus  in  Krall  v.  Bur- 
nett,* the  plaintiff'  shipped  goods  from  London  to  Rouen,  the 
freight  being  payable  in  London.  The  Court  held  that  the  de- 
fendant could  not  treat  the  word  "  freight"  as  an  ambiguous 

'  Baltimore,  etc.,  Stm.  Boat  Co.  v.  ^  2  Sawyer's  Reps.  15. 

Brown,  4  P.  F.  Smith  (Penmi.),  77;  »  Myrick   v.    M.    C.  R.   R.   Co.,  9 

see  also  Martin  r.  Cole,  104  U.  S.  30  ;  Bissel's  Rep.  44  ;  see  also  Morrison  v. 

Mo.  Tac.  Ry.  Co.  v.  Fagan,  9  S.  W.  Davis,  20  Penn.  171 ;   Hamilton  v.  W. 

Rep.  749;  Doaner.  Keating,  15  Leigh  N.  C.  R.  Co.,  96  N.  C.  398. 

(Va.),    391  ;    Brown    v.  Spoftord,  95  *  25  W.  R.  305. 
U.  S.  474. 

52 


CHAP,  v.]  BILL   OF   LADING   IS   A   CONTRACT.  [§  72. 

term  so  as  to  give  evidence  of  a  custom  to  show  that  «  freight 
payable  in  London"  meant  "freight  payable   in  advance  m 

London."  ^     .  .         , 

S  71  The  contract  between  the  shipper  and  the  carrier  set 
forth  in  the  bill  must  be  gathered  from  the  whole  mstru- 
ment/  giving,  if  possible,  force  and  effect  to  every  word  made 
use  of  in  order  to  determine  the  true  intent  of  the  parties. 
Thus  where  the  caption  of  a  bill  said,  "  through  without  trans- 
fer in  cars  owned  and  controlled  by  the  company,"  the  caption 
was  held  to  be  part  of  the  instrument  and  to  be  considered  in 
determining  the  effect  of  the  contract.3  '       .,    ^^        .    „ 

§  72    On  the  other  hand  it  has  been  held  that  while    marks 
on  packages  may  serve  for  an  address,  the  copies  of  them  in  the 
bills  of  lading  can  serve  no  purpose  but  to  identify  the  parcels. 
They  cannot  contradict  the  language  used  in  the  body  of  the 
bill      A  carrier  contracted  to  carry  goods  to  "  Is^ashville,  Tenn., 
there  to  be  delivered  to  J.  E.  Butler  or  order."     Under  the 
head  of  "Marks"  in  one  of  the  bills  issued  were  the  words, 
"J    E.  Butler,  Atlanta,   Ga."     In  two  other  bills  the  words 
"Atlanta    Ga."  immediately  followed  the   name  of  the  con- 
sio-uee  where  it  iirst  occurred  in  the  bills.     It  was  held  that 
the  carrier  was  bound  to  carry  to  Nashville.     The  noting  of 
the  marks  in  the  bill  did  not  alter  the  plain  language  ot  the 

contract.*  ^    ,    t-^        t- 

Ao-ain,  a  marginal  note  put  by  the  Quartermasters  Depart- 
ment of  the  United  States  on  bills  of  lading  of  vessels  chartered 
by  them,  "that  if  on  the  arrival  of  the  vessel  at  the  port  of 
*  destination  the  consignee  should  order  her  to  another  place  to 
discharge,  such  order  in  all  cases  to  be  in  writing  on  the  biU  ot 
ladino-,"  does  not  make  a  part  of  the  contract  entered  into  by 
the  vessel  and  if  her  port  of  destination  be  plainly  expressed 

.  Robinson   v.  Merch.    DIs.  Trans.  ^  Heineman  v.  G.  T.  R.  R.  Co.,  31 

Co.,  45  Iowa,  470;  Stewartz;.  Merch.  How.  Pr.  (N.  Y.)  430. 

Dis    Trans.  Co.,  47  Ibid.  229  ;   Ash-  »  Robinson  ..  Merch.   I^'^P-  Trans, 

moi'e  ..  Penna.  Stm.  T.  Trans.  Co.,  4  Co.,  45  Iowa,  470  ;   Stewart ..  Merch. 

Dutcher  (N.  Y.),   180;  Lawrence  ..  Dis.  Trans,  ^o-,  47  Iowa   229. 

McGregor,  Wright  (Ohio),  193.  *  Wheeler  ..St.  L.  &  S.  R.  R.  Co., 

=  3  Mo.  Appeal  Rep.  359. 

53 


§  73.]  BILLS   OF   LADING.  [CHAP.  V. 

ill  the  body  of  the  bill,  the  consignee  cannot,  in  virtue  of  the 
marginal  memorandum,  order  her  to  go  forward  to  another 
port.^ 

§  73.  ISTot  only  must  the'whole  of  the  bill  of  lading  be  looked 
to,  but  often  it  refers  in  terms  to  a  charter  party  or  other  in- 
strument as  a  completion  of  itself;  e.g.^  it  may  provide  that 
goods  are  to  be  delivered  "  unto  the  order  of  the  shippers  or 
assigns,  he  or.  they  paying  freight  for  the  said  goods  as  per 
charter  party."  Then  the  provision  in  the  latter,  so  referred  to, 
becomes  part  of  the  bill  of  lading.^ 

In  the  case  of  Cobb  v.  Blanchard,^  the  defendants  chartered  a 
barque  to  the  plaintiff  for  a  voyage  from  a  port  of  Sicily  to  Bos- 
ton or  New  York,  with  the  privilege  of  using  a  second  port  in 
Sicily  with  the  laydays  if  required,  "  the  master  to  sign  bills 
of  lading  for  any  part  of  the  cargo  at  any  given  rates  of  freight, 
if  requested  to  do  so  without  prejudice  to  this  charter  party," 
etc.  The  master  having  taken  in  one-third  of  a  cargo  at  Licato 
and  at  the  request  of  plaintiff's  agent  signed  a  bill  of  lading 
reciting  that  the  vessel  was  bound  for  Boston,  sailed  at  once 
without  waiting  for  the  expiration  of  the  laydays  or  for  a  full 
cargo.  Plaintiff  had  a  cargo  waiting  at  Palermo,  though  the 
master  had  not  been  so  informed.  In  an  action  for  damages  for 
the  loss  of  this  cargo,  it  was  held  that  the  bill  was  not  con- 
clusive evidence  of  the  voyage  which  the  master  was  to  pursue, 
as  it  would  be  if  it  were  the  only  evidence  of  the  contract  of 
affreightment.  A  bill  of  lading  is  seldom  used  to  fix  the  terms 
of  the  shipment  as  between  shipper  and  owner  when  there  is  a 
formal  charter  party  and  here  it  was  stipulated  that  bills  of 
lading  should  be  without  prejudice  to  the  charter  party.  Hence 
the  bill  is  not  conclusive  evidence  that  the  master  was  bound 

'  United  States  V.  Kimball,  13  Wal-  S.    163:    Bags  of  Linseed,  1  Black, 

lace,  636.  108;  Thorman  v.  Burt,  54  L.  T.  N. 

«  CertainLogsof  Mahogany,  2  Sum-  S.   349;    Lishman  v.  Christie,   L.   11. 

ner  (U.  S.  C.  C),  589;  see  also  Ro-  19  Q.  B.  D.  333;  Paterson  v.  Dakin, 

docanachi  v.  Milburn,  L.  R.  18  Q.  B.  31  Fed.  Rep.  682  ;  The  Karo,  29  Fed. 

D.  67;  Cobb  v.  Blanchard,   11  Allen  Rep.  652. 

(93  Mass.),  409:    Perkins  v.  Hill,  2  Ml    Allen    (93   Mass.),    409;    see 

Woodbury  &  Minoto  (U.   S.  C.   C),  also  Ardan  Steamship  Co.  v.  Theband, 

158;  Russell  v.  Nieman,  17  C.  B.  N.  35  Fed.  Rep.  620. 

54 


CHAP,  v.]  BILL   OF   LADING   IS    A   CONTRACT.  [§  74. 

to  sail  at  once  directly  for  Boston  or  that  he  exercised  good 
faith  in  doing  so. 

A  bark  was  chartered  for  a  voyage  from  Baltimore  "  to  a 
safe,  direct,  Norwegian  or  Danish  port,  as  ordered  on  signing 
bills  of  lading,  or  as  near  thereunto  as  she  can  safely  get  and 
always  lay  and  discharge  afloat."  The  vessel  was  loaded  and 
bills  of  lading  were  tendered  to  the  master  for  signature,  order- 
ing the  bark  to  the  port  of  Aalborg,  in  Denmark.  The  master 
refused  to  sign  the  bills  of  lading  on  the  ground  that  Aalborg 
was  not  a  safe  port.  The  evidence  showed  that  Aalborg  was 
in  an  inlet,  having  a  bar  across  its  mouth,  which  it  was  impos- 
sible for  the  bark  to  pass,  either  in  ballast  or  with  cargo  and 
that  there  was  no  reasonably  safe  anchorage  outside.  The 
court  held  that  the  captain  was  justified  in  refusing  to  sign  the 
bills  of  lading.^ 

§  74.  It  has  been  held,  however,  that  though  a  charter 
party  contained  other  exceptions  than  that  mentioned  in  the 
bill  of  lading  ["  dangers  of  Sea"],  the  master  was  the  agent  of 
the  owner  as  well  as  the  charterer  and,  therefore,  the  terms  of 
the  bill  of  lading  were  binding. 2. 

In  the  case  of  the  Bark  "  Carlotta,"^  it  was  held  that  where  the 
owner  of  a  vessel,  notwithstanding  the  charter-party,  enters 
into  a  special  contract  through  the  master  in  respect  to  the  car- 
riage and  delivery  of  the  goods,  the  bills  of  lading  must  be 
regarded  as  the  contracts  by  which  the  rights  of  the  parties  are 
to  be  governed,  so  far  as  respects  the  matters  provided  therein. 

In  GuUischein  v.  Stewart  Brothers,  a  charter-party  contained 
the  usual  stipulations  for  freight,  demurrage  and  a  cesser  clause. 
The  charterers  placed  the  cargo  on  board  at  the  port  of  loading 
and  a  bill  of  lading  was  signed,  making  the  goods  deliverable 
to  themselves  at  the  port  of  discharge,  "  they  paying  freight 
and  all  other  conditions  as  per  charter."  The  ship  owners 
brought  an  action  against  the  charterers  as  consignees  under 
the  bill  of  lading,  for,  demurrage  at  the  port  of  discharge. 
The  court  held  that  the  charterers  were  liable  because  the  bill 

•  The  Gazelle,  128  U.  S.  474.  »  9  Benedict,  1. 

2  The    Patria,   41    L.  J.  Adm.   23. 
(Ct.  of  Adm.) 

55 


\ 


§  76.]  BILLS   OF   LADING.  [CHAP.  V. 

of  lading  only  incorporated  such  clauses  of  the  charter  as  were 
consistent  with  its  character  as  a  bill  of  lading.  The  cesser 
clause  was  held  not  to  be  incorporated.^ 

§  75.  Where  there  are  written  and  printed  clauses  in  a  bill 
which  are  at  variance  with  each  other,  the  written  portions 
must  prevail.  Only  so  much  of  the  printed  matter  in  the 
blank  form  as  is  consistent  therewith,  is  of  any  effect.  All  the 
rest  must  be  rejected.^  A  case  in  point  is  where  A.  shipped 
goods  taking  a  bill  of  lading  for  them  in  which  a  certain 
valuation  (in  reality  below  the  value  of  the  goods)  was  written 
whereby  the  goods  were  agreed  to  be  carried  at  a  reduced  rate. 
The  bill  also  contained  a  printed  clause  that  in  case  of  loss  the 
value  of  the  goods  at  the  place  of  shipment  should  be  taken. 
The  goods  were  lost  and  A.  was  held  to  be  bound  by.the  state- 
ment of  value  written  in  the  bill  of  lading,— the  reduced  freight 
being  an  ample  consideration  for  the  low  valuation  put  upon 
the  goods.^ 

§  76.  A  plaintiff  delivered  to  carriei-s  a  closed  case  containing 
silk  broad-stuffs.  The  bill  of  lading  described- the  contents  as 
linen  goods.  Before  signing,^  the  captain  of  the  ship  stamped 
on  the  bill  the  words  "  weight,  value  and  contents  unknown." 
The  representation  that  the  goods  were  linen  was  inadvertent 
and  two  pieces  of  silk  were  found  to  be  abstracted  on  the  de- 
livery of  the  case.  In  an  action  for  the  value  of  the  two  pieces 
it  was  held  that  the  effect  of  the  words  stamped  was  to  com- 
pletely do  away  with  the  description  of  the  goods  as  linen  and 
the  carrier  was  bound  to  carry  the  goods  whatever  they  were. 
The  action  was  accordingly  sustained.^ 

In  the  case  of  the  Andover  a  libel  was  filed  against  the  ship 

>  L.  R.,  13  Q.  B.  D.  317;  see  also  Co.,  49  N.  Y.  491  ;  Miller  v.  H.  & 

The  San  Roman,  L.  R.  3  Adm.  583  ;  St.  J.  R.  R.  Co.,  24  Hun.  (N.  Y.), 

Kern  v.   Deslandes,  10  C.   B.   N.   S.  607;  Elkins  v.  Empire  Trans.  Co.,  2 

205;  Gledstanes  v.   Allen,   12  C.  B.  W.  N.  C.  403;  The  Brig.  Sloga,  10 

202;  Gardner  V.  Trechmann,  L.  R.  15  Benedick  (U.  S.  D.  C.  N.  Y.),  315. 

Q.  B.  D.  154;    Porteus  c.  Watney,  "  Elkins   v.  Empire  Trans.  Co.,  2 

L.  R.  3  Q.  B.  D.  534  ;    Bryden   v.  W.  N.  C.  403  (Supreme  Ct.  Penna.). 

Niebuhr,    1    C.   &  E.    241  ;    Gray  v.  *  Lebeau  v.  Gen.   Stm.  Nav.   Co., 

Carr,  L.  R.  6  Q.  B.  522.  42  S.  J.  C.  P.  1  ;  8  L.  R.  C.  P.  88. 

2  Babcock  V.  L.  S.  &  M.  S.  R.  R. 

56 


CHAP,  v.]  BILL   OF   LADING   1^   A   CONTRACT.  [§  77. 

to  recover  the  value  of  ten  bales  of  cotton.  The  cotton  in 
question  was  part  of  a  cargo  shipped  and  consigned  to  the 
libellant, — he  paying  the  freight.  The  bill  of  lading  con- 
tained the  clause,  "contents  and  weight  unknown."  The 
freight  was  to  be  paid  at  a  certain  rate  per  pound  and  in  the 
mai-gin  of  the  bill  certain  figures  were  placed,  apparently  as 
the  aggregate  weight  of  the  cotton.  On  the  arrival  of  the 
ship  the  consignees  of  the  ship  claimed  that  the  figures  in  the 
margin  of  the  bill  of  lading  should  govern  in  determining  the 
weight,  while  the  libellant  insisted  that  as  the  bill  of  lading 
said  "  weight  unknown,"  the  cotton  should  be  weighed  and 
freight  be  paid  accordingly.  He  ofifered  to  pay  the  freight  on 
these  terms.  The  ten  bales  in  question  were  retained  under 
the  ship's  lien  for  freight.  The  court  said :  "  There  is  nothing 
in  the  bill  of  lading  indicating  that  the  weight  was  agreed 
on  between  the  master  and  the  shipper,  but  the  contrary.  For 
notwithstanding  the  memorandum  in  the  margin  as  the  sup- 
posed or  real  weight  of  the  cotton,  the  master  as  is  apparent, 
required  the  insertion  at  the  foot  of  the  bill,  before  he  signed 
it,  of  the  words  "  contents  and  weight  unknown,"  thereby  ex- 
cluding any  inference  that  the  owner  was  to  be  bound  by  the 
memorandum."  A  decree  for  the  libellant  for  the  value  of  the 
cotton,  less  the  freight,  was  aflirmed. 

§  77.  A  bill  of  lading  like  any  other  contract  is  to  be  con- 
strued according  to  the  intent  of  the  parties.^  Where  it  is 
specified  that  goods  are  to  be  carried  from  one  point  to  an- 
other, a  direct  voyage  is  prima  facie  intended,  but  this  may  be 
controlled  by  usage  or  the  personal  knowledge  of  the  shipper.^ 
In  the  case  of  Adams  Express  Company  v.  Boskowitz,^  an 
action  was  instituted  to  recover  damages  for  the  loss  of  cer- 
tain furs  and  the  defence  was  based  on  the  ground  that  the 
shipper's  clerk  fraudulently  concealed  the  value  of  several 
packages.     Here  a  blank  receipt  of  U.  S.  Express  Company 

• 

'  Nicholas  v.  N.  Y.  C.  &  H.  R.  R.     (25  Mass.)  360  ;  Adams  Ex.  Co.    v. 
R.  Co.,  89  N.   Y.  370;    Heineman  v.     Boskowitz,  107  111.  660, 
G.  T.   R.  R.    Co.,  31  How.  Pr.  (N.         «   Lowry  v.    Russell,    8    Pickering 
Y.)  430 ;  Lowry  v.  Russell,   8  Pick.     (25  Mass.),  360. 

3  107  111.  660. 

57 


§  77.]  BILLS    OF   LADING.  [CHAP.  V. 

was  used  with  the  word  "Adams"  written  over  "United  States" 
in  the  heading,  but  not  in  the  body  and  the  latter  express  com- 
pany was  in  no  sense  a  party  to  the  contract.  It  was  held  that 
the  true  intent  of  the  parties  must  be  determined  from  circum- 
stances to  be  proved  dehors  the  receipt. 
58 


CHAP.  VI.]        RULES   FOR   CONSTRUING   THE   CONTRACT.  [§  78. 


CHAPTER  VI. 

FURTHER  RULES  FOR  CONSTRUING  THE  CONTRACT. 


The  bill  construed  with  reference  to 
usage  and  custom,  §§  78,  7^,  80. 

Limitations  of  the  rule,  §  81. 

Terms  varied  by  custom  or  technical 
meaning,  §  82. 

Usage  as  to  course  of  voyage,  §  83. 


Usage  in   conflict  with   positive  law, 

§84. 
The  bill  construed  with  reference  to 

custom  as  to  stowage,  §§  85,  86. 
The  case  of  Lamb  v.  Parkman,  §  87. 
Custom  as  to  stowage  continued,  §  88. 


§  78.  It  may  be  laid  down  as  a  general  rule  that  bills  of  lading 
are  not  to  be  strictly  construed.^  As  contracts  they  may  not 
be  varied  b}'^  parol,  but  evidence  of  usage  or  custom  is  admis- 
sible to  aid  in  their  interpretation.  This  is  received  in  order 
that  the  Court  may  ascertain  the  sense  and  understanding  of  the 
parties  to  the  contracts,  which  are  made  with  reference  to  such 
usage  or  custom.^  The  custom  is,  in  fact,  a  part  of  the  contract 
and  may  be  properly  considered  as  the  law  of  the  contract 
resting  on  the  same  principle  as  the  doctrine  of  the  lex  loci.^ 

Though  a  bill  of  lading  is,  generally  speaking,  to  be  con- 
strued, according  to  the  terms  expressed  in  it,  yet  to  adopt  the 
words  of  Mr.  Justice  Wright,  "  If  there  is  a  common  usage  of 
the  trade  affecting  the  question,  that  usage  will  be  regarded  as 
within  the  contemplation  of  the  contracting  parties  and  a 
compliance  with  the  contract  as  modified  by  such  usage,  will 
satisfy  the  stipulations  of  the  contract.  But  a  usage  to  affect 
the  contract,  must  be  common  and  general ;  not  fluctuating  or 
dependent  upon  price,  or  other  such  circumstance.  If  a  carrier 
would  reserve  to  himself  the  right  to  vary  from  a  contract  of 
lading  drawn  in  the  usual  form  or  avail  himself  of  the  privilege 

'  Jones  V.  Hoyt,  23  Conn.  157.  ^  Sampson   v.   Lindsay,     6    Porter 

«  May  V.  Babcock,  4  Ohio,  334.  (Ala.),  123. 

59 


§  80.]  BILLS   OF   LADING.  [CHAP.  VI. 

of  change,  he  must  stipulate  for  the  leave  and  vary  the  bill  of 
lading  so  as  to  meet  the  stipulation."^ 

§  79.  The  case  of  Blossom  v.  Griffin  decided  that  in  con- 
struing a  written  instrument  the  Court  may  look  to  antecedent 
and  attending  facts  and  circumstances  to  ascertain  its  mean- 
ino:.2  Thus  where  it  is  shown  to  be  a  usual  custom  for  a  carrier 
to  give  a  receipt  for  goods  over  night  aiid  a  bill  of  lading  in  the 
morning,  goods  so  taken  are  to  be  considered  as  taken  under 
the  usual  form  of  the  carrier's  bill  of  lading  and  the  latter  re- 
lates back  to  the  receipt  of  the  goods.^ 

In  a  Louisiana  case*  where  calves,  h^ing  been  shipped  on  a 
steamboat,  were  in  the  course  of  the  journey  put  on  shore  to 
lighten  the  boat,  wandered  oiF,  no  care  being  taken  of  them 
and  the  defence  set  up  a  custom  that  it  was  not  usual  for  boats 
to  give  bills  of  lading  for  this  kind  of  freight  and  that  the 
carrier  was  not  responsible  for  the  lives  of  stock  shipped,  the 
Court  saw  nothing  in  the  defence  to  excuse  the  carrier,  since, 
even  if  it  were  available  as  a  defence,  no  knowledge  of  any  such 
usage  by  the  other  party  was  shown.  It  has  been  also  held  that 
a  custom  to  lighten  cotton  over  shoals  in  the  Tennessee  River 
when  the  water  is  lowand  charge  the  lighterage  to  the  owner  of 
the  goods,  is  reasonable,  beneficial  to  the  consignor  and  binding 
on  him.  The  contract  in  the  bill  of  lading  is  presumed  to 
have  been  made  with  reference  to  the  custom.® 

A  bill  of  lading  which  says,  "  The  property  is  to  be  delivered 
in  like  good  order  and  condition  at  the  port  of  New  York, 
dangers  of  the  seas  (land  carriage  and  river  navigation,  thieves 
and  robbers)  excepted,"  disposes  by  its  own  terms  of  all  customs 
and  practices  and  there  is  no  room  for  proof  of  them  for  the 
purpose  of  modifying  the  contract.^ 

§  80.  In  Adams  Express  Co.  v.  Boskowitz,''  there  was  a  con- 
flict of  evidence  as  to  whether  a  memorandum  of  the  nature  and 
weight  of  certain  furs  was  put  on  a  receipt  before  or  after  it  was 

•  Lawrence  v.  McGregor,  Wright  *  Pitre  u.  Ofiut,  21  La.  Ann.  Rep. 
(Ohio),  193.  679. 

2  13  N.  y.  569.  *  Andrews  v.  Roach,   3  Ala.   590. 

«  Patterson  v.  Clyde,  17  P.  F.  ^  Simmons  v.  Law,  3  Keyes  (40 
Smith  (Pa.),  500.  N.  Y.),   217. 

7  107  111.   660. 

60 


CHAP.  VI.]         RULES   FOR   CONSTRUING   THE    CONTRACT.  [§  81. 

sio-ned.  A  question  was  put  to  the  agent  of  the  common  carrier 
whether  it  was  customary  according  to  his  observation  for 
plaintiffs  to  put  their  weights  on  the  receipts.  The  Court  held 
that  the  question  was  proper.  Again,  in  the  Canadian  case  ot 
Gibbon  V.  Michael's  Bay  Lumber  Company,^  a  question 'arose 
as  to  whether  Sunday  was  to  be  reckoned  as  one  of  the  days 
to  be  allowed  for,  in  computing  demurrage  provided  for  in  a 
charter  party.  The  Court  held  that  "days"  mean  the  same  as 
running  days,  or  consecutive  days,  unless  there  be  some  par- 
ticular custom  or  usage  to  the  contrary.  _ 

The  contract  by  which  a  common  carrier  limits  his  liability 
may  be  express  or  implied  and  usage  may  be  resorted  to,  to 
prove  that  such  a  contract  is  to  be  implied.^ 

§  81.  Mere  usage  cannot  absolve  a  common  carrier  from  his 
ordinary  duties  to  which  he  is  bound  by  public  policy,  by  his 
general  undertaking  or  by  his  special  promise.^  Thus  the 
owners  of  a  steamboat  are  liable  as  common  carriers  for  a 
loss  of  goods  by  robbery.  Where  a  boat  on  the  Tombigbee 
River  was  boarded  and  seized,  by  a  body  of  armed  men  and 
certain  cotton  taken  which  had  been  shipped  under  a  bill  of 
lading  which  as  usual  excepted  "  dangers  of  the  river,"  it 
was  held  that  evidence  could  not  be  received  of  a  custom  ex- 
empting the  owners  from  loss  by  such  seizure  as  that  in  this 
Custom  cannot  be  allowed  to  vary  the  plain  terms  of  the 


case. 


contract.* 

There  is  nothing  in  the  language  of  bills  of  lading  excepting 
"perils  of  navigation  and  perils  of  the  sea,"  which  makes  the 
owner  of  the  ship  liable  for  the  negligence  of  his  servants  in 
case  of  loss  by  fire,  when  the  Act  of  Congress  of  3d  March, 
1851  (9  Stat,  at  Large,  635),  which  applies  to  express  contracts 
and  to  lake  as  well  as  ocean  trade,  expressly  declares  the  ship- 
owner free  from  such  responsibility.  Usage  cannot  add  to 
words  which  do  not  express  it,  a  liability  from  which  the  Act 

.       >   7  Ontario,  746.  12  App    Cases,   11;  56  L.  J.  Q.  B. 

2  Cooper  V.  Berry,   21  Ga.   526.  266;   35  W.   R.  461. 

3  P.  C.  &  St.  L.  R.  R.  Co.  V.  Bar-  '  Boone  v.  Strubt  Belfast,  40  Ala. 
rett,  36  Ohio  State.  448;  Turney  v.  184;  overruling  Steele  v.  McTyer's 
Wilson,  7  Yerger  (Tenn.),  340;  Ex-  Adm'rs,   31   Ala.   667. 

change  Shipping  Co.  v.  Dixon,  L.  R. 

61 


§  83.]  BILLS   OF   LADING.    "  [CHAP.  VI. 

of  (Congress  declares  the  ship-owner  to  be  free.  Such  usage  is 
not  to  be  attached  to  words  in  a  contract  which  have  no  such 
meaning  of  themselves.^ 

§  82.  Terms  used  in  the  bill  which  by  custom  have  acquired 
a  tech-nical  meaning  will  be  taken  in  that  sense.^  Thus  if  the 
langruaofe  of  a  bill  of  lading  be  deemed  insufficient  to  determine 
the  meaning  of  the  words  "  quantity  guaranteed"  used  therein, 
they  may  be  regarded  as  a  technical  expression  known  and 
understood  by  persons  in  the  business  and  evidence  from  such 
a  person  is  proper  to  explain  it.^ 

Where  a  carrier  receipted  for  certain  marble  slabs  as  "  un- 
wrought  marble,"  it  was  held  that  the  words  "  wrought"  and 
"  unwrought"  were  of  doubtful  signification  and  it  was  com- 
petent for  the  owner  to  show  the  meaning  given  to  them  by 
custom  and  usage  and  that  such  custom,  in  order  to  bind  the 
carrier  need  not  be  universal,  settled  or  uniform,  among  dealers 
and  carriers.^ 

§  83.  In  a  bill  of  lading  a  direct  voyage  is  imma  facie  intended, 
but  a  custom  of  stopping  at  intermediate  points,  or  an  agreement 
of  the  parties  so  to  do,  may  show  the  intention  to  have  been  other- 
wise.® In  Wright  v.  Ilolcombe,  the  plaintiff  shipped  flour  in 
defendant's  vessel  which  stopped  at  various  places  out  of  her 
direct  course  to  complete  her  cargo.  The  vessel  was  wrecked 
while  out  of  her  course.  The  bill  of  lading  contained  the  usual 
exceptions  as  to  act  of  God,  the  Queen's  enemies,  fire  and  dangers 
and  accidents  of  navigation.  The  Court  held  that  the  devia- 
tion not  appearing  to  be  in  the  usual  course  of  trade,  the  de- 
fendant was  liable  for  the  value  of  the  flour.  Chief  Justice 
Draper,  in  delivering  the  opinion,  said :  "  Looking  at  the  bill 
of  lading  and  considering  its  terms  only,  the  presumption 
would  be  that  a  direct  voyage  was  intended.  If  it  were  shown 
that  there  was  a  usage  to  stop  at  intermediate  places,  or  if  per- 
sonal knowledge  could  be  brought  home  to  the  shipper  that 

'  Walker    v.  Transp.  Co.,  3  Wal-  *  Bancrofts.  Peters,  4  Mich.  619. 

lace,   150.  ^  Lowrey?;.  Russell,  8  Pick.  (Mass.), 

2  Wayne  v.  Stra.  Pike,  16  Ohio,  360;  Cobb  v.  Blanchard,  11  Allen, 
421.  409. 

3  Bissell   V.   Campbell,    54   N.    Y. 
353.  « 

62 


CHAP.  VI.]        RULES   FOR   CONSTRUING   THE   CONTRACT.  [§  85. 

stopping  at  intermediate  places  must  have  been  intended  in 
order  to  complete  the  loading  of  the  vessel,  then  the  presump- 
tion arisino;  from  the  lano;ua2:e  of  the  bill  of  lading;  would  be 
qualified.  The  existence  of  such  a  voyage,  or  of  such  knowl- 
edge, are  matters  of  fact  to  be  determined  by  the  jury.  The 
parties  have  desired  and  agreed  that  the  Court  shall  decide  this 

case  on  the  evidence The  evidence  of  usage  was  not  of 

that  character  to  warrant  the  legal  inference  that  the  direct 
contract  is  controlled  by  it."^ 

§  84.  A  usage  of  trade  in  conflict  with  positive  law  will  not 
be  sustained.  Thus  a  usage  of  trade  that  a  valid  contract  for 
carriage  may  be  thrown  up  at  the  convenience  of  either  party 
is  not  good.^  A  consignee  or  an  indorsee  of  a  bill  of  lading 
has  no  right  to  have  the  value  of  missing  goods  deducted 
from  the  freight  payable  in  respect  of  the  goods  delivered. 
This  being  the  general  law,  it  cannot  be  altered  by  a  universal 
practice  of  merchants  which  is  not  confined  to  any  particular 
place  or  trade  to  have  the  value  of  such  goods  deducted  from 
the  freight.  There  can  be  no  such  custom  inconsistent  with 
the  law.^ 

§  85.  A  clean  bill  imports  that  the  goods  are  to  be  stowed  under 
deck  and  parol  evidence  to  vary  such  a  bill  is,  as  a  general 
rule,  inadmissible.  Even  in  an  action  by  the  vendor  against 
the  purchaser  for  the  price  of  the  goods  which  were  lost  in 
consequence  of  the  stowage  on  deck  by  the  carrier,  it  was  held 
that  parol  proof  that  the  vendor  agreed  that  the  goods  should 
be  so  stowed  could  not  be  received.^  Testimony  to  prove  a 
verbal  agreement  that  the  goods  might  be  stowed  on  deck  was 
rejected  in  the  case  of  Barber  v.  Brace,'  on  the  ground  that  the 
whole  conversation  before  and  at  the  time  the  writing:  was 
given  was  merged  in  the  written  instrument.®  Where  it  ap- 
peared that  the  shipper  or  his  agent  who  delivered  the  goods 
to  the  carrier  repeatedly  saw  them  as  the}^  were   stowed    in. 

'  Wright  V.  Holcombe,  6  U.  C.  C.  *  Creery  v.  Holly,  14  Wendell,  28  ; 

P.  Rep.  531.  Star  of  Hope,  2  Sawyer,  15. 

2  Randall  v.  Smith,  63  Me.  105.  ^  3  Conn.  9. 

3  Meyer  v.  Dresser,  33  L.  J.  C.  P.  «  S5e  also  The  Wellington,  1  Bissell, 
289  ;   12  W.  R.  983  ;   10  L.  T.  N.  S.  279. 

612;  16  C.  B.  N.  S.  646. 

63 


§  86.]  BILLS   OF   LADING.  [CHAP.  VI. 

that  way  and  made  no  objection,  it  has  been  held,  that  the 
evidence  of  these  facts  was  not  admissible  to  vary  the  legal 
import  of  the  contract  of  shipment.  The  bill,  being  what  is 
called  a  clean  bill,  bound  the  carrier  to  transport  the  goods 
under  deck.^ 

Where  the  bill  stipulated  that  goods  were  to  be  carried  on 
deck,  parol  proof  was  held  inadmissible  to  affect  the  stipu- 
lation.2  Clear  extrinsic  proof  that  the  bill  was  signed  by  mis- 
take and  that  the  actual  agreement  was  that  the  goods  should 
be  taken  and  stowed  on  deck,  is  admissible.  It  would  be  but 
a  mistake  committed  in  reducing  an  agreement  to  writing,  a 
mistake  from  which  a  court  of  equity  would  relieve.^ 

§  86.    Suit   was   brought   for   damages   for  non-delivery   of 

cotton  in  good  order,  as  stipulated  by  the  bills  of  lading  and 

the  defendants  answered  that  it  was  the  custom  of  carriers  to 

transport  goods  in   open  vehicles  and  boats   exposed   to  the 

weather,  that  such  custom  was  known  to  and  acquiesced  in  by 

the  shippers  in  the  case  in  question  and  that  the  cotton  suffered 

solely  from  rain  falling  upon  it  during  the  conveyance.     It  was 

held  that  the  exemption  from  liability,  claimed  by  defendants, 

seemed  well  founded  in  reason  and  a  necessary  result  of  the 

circumstances.*    In  the  case  of  "  The  Delaware,"^  it  was  held 

that  shipowners  are  bound  to  have  goods  safely  secured  under 

deck,  unless  they  are  authorized  to  carry  on  deck  by  the  usage 

of  a  particular  trade  or  the  assent  of  the  shipper.     Mr.  Justice 

Clifford,  said,  inter  alia,  that,  "  Testimony  to  prove  a  verbal 

agreement  that  the  goods  might  be  stowed  on  deck  was  offered 

by  the  defence  in  the  case  of  Barber  v.  Brace,  but  the  court 

rejected  the  testimony,  holding  that  the  whole  conversation, 

both  before  and  at  the  time  the  writing  was  given,  was  merged 

in  the  written  instrument,  which  undoubtedly  is  the  correct 

rule  upon  the  subject." 

In  an  action  for  the  loss  of  certain  lumber  shipped  from 
Gardiner,  Me.,  to  Boston,  Mass.,  under  a  "  clean"  bill  of  lading 

'  Sproat  V.  Donnell,  26  Me.  187.  *  Chevallier's  Adni'r   v.  Patton,  10 

«  Sayward  v.  Stevens,  3  Gray  (69     Texas,  344. 
Mass.),  97.  *  ^  The  Delaware,  14  Wallace,  579. 

^  Doane  v.  Keating,  12  Leigh  (Va.), 
891. 

64 


CHAP.  VI.]         RULES   FOR    CONSTRUING    THE    CONTRACT.  [§  87. 

and  stowed  on  deck,  it  was  held  that  the  bill  was  affected  by 
the  custom  of  stowing  such  cargoes  as  convenience  required 
either  below  or  upon  deck  and  that  no  liability  attached  to  the 
carrier-no  negligence  having  been  shown.^ 

S  87    In  the  case  of  Lamb  v.  Parkman^  a  libel  in  admiralty 
was  filed  by  the  owner  of  the  vessel  to  recover  a  balance  ot 
frei-ht  on  a  charter-party.     The  contract  was  in  the  usual  form 
and%ontained  the  clause,  "dangers  of  the  seas,  fire  and  navi- 
o-ation  excepted."     The  respondent  claimed  a  set-oft  for  a  loss 
occasioned  by  an  alleged  improper  stowage  of  the  cargo  and 
iniury  to  it  from  steam.     Mr.  Justice  Sprague,  in  entering  a 
decree  for  the  libellant,  said:   "It  appears  by  the  evidence  that 
three-fourths,  at  least,  of  all  the  merchandise  imported  into 
the  United  States  from  Calcutta  are  brought  into  the  port  o 
Boston  and  that  almost  all  the  cargoes  are  more  or  less  aftected 
by  this  steam  damage,  as  it  is  called.  ...     It  has  not  been 
shown,  that  the  amount  of  injury  in  the  present  case  is  unusual. 
After   a   careful    consideration   of    all    the    evidence 
I  think  that  it  clearly  proves  a  usage  to  stow  cargoes  m  the 
Calcutta  trade,  consisting  of  the  same  kind  of  goods  as  this,  m 
the  same  manner  as  this  cargo  and  these  goods  were  stowed 
It  was  further  clearly  proved,  that  this  kind  of  damage  had 
always  been  borne  by  the  shipper  and  never  by  the  ship-owner 
There  is  no  controversy  that  the  parties  may  make  a  contract 
for  any  mode  of  stowage  which  they  may  see  fit.     What  con- 
tract have  they  made  in  this  respect?     In  the  absence  of  ex- 
pressed stipulations  the  usage  of  the  trade  answers  this  ques- 
tion    To  that  usage  the  contract  tacitly  refers,  not  to  contradict 
or  vary  its  terms,  but  for  expounding  its  meaning  and  supply- 
ing details  in  the  mode  of  its  execution.      But  it  is  insisted 
thtt,  under  such  a  charter-party,  it  is  the  practice  for  masters  to 
Sive  a  bill  of  lading  at  Calcutta,  in  the  usual  form  and  tliat,  as 
this  was  done  in  the  present  case,  the  owners  thereby  became 
insurers  against  all  losses  not  coming  within  the  express  or 
implied  exceptions.     Without  pausing  to  inquire  what  would 
be  the  rio-hts  of  an  assignee,  I  apprehend  that,  as  between  the 
original  parties,  the  bill  of  lading  must  be  deemed  a  receipt 

1  Sproat  V.  Donnell,  26  Me.  185.  '  1  Sprague,  343. 

P.  65 


§  88.]  BILLS   OF   LADING.  [CHAP.  VI. 

or  acknowledgment  of  the  goods  taken  on  board,  without 
varj'ing  the  obligations  of  the  charter-party.  But  suppose 
that  by  virtue  of  this  usage,  the  bill  of  lading  is  imported  into 
the  original  contract,  is  not  the  usage  for  the  shipper  always  to 
bear  this  steam  damage  also  imported  into  the  contract?  If 
usage  creates  liabilities  by  giving  a  bill  of  lading,  does  not 
usage  also  limit  those  liabilities  to  the  exclusion  of  the  present 
claim  ?  But  independently  of  this  view,  what  are  the  liabilities 
of  the  carrier,  under  the  bill  of  lading?  By  the  express  ex- 
ceptions, he  is  not  responsible  for  loss  or  injury  arising  from 
the  perils  of  the  sea  or  navigation  and  the  law  also  exempts 
him  from  liability  for  damage  or  deterioration  arising  from  the 
nature  of  the  article  and  its  confinement  in  the  hold  during 
the  voyage." 

§  88.  It  was-  the  opinion  of  Mr.  Justice  Randall,  in  Knox  v. 
The  Miretta,^  where  the  usage  to  carry  wood  on  deck  had  been 
urged  as  a  sufficient  defence,  that  a  usage  or  custom,  if  proved, 
cannot  be  suflered  to  vary  the  positive  stipulations  of  a  contract. 
The  usage  may  always  be  waived  at  the  will  of  the'  parties. 
Again,  in  another  case,  where  it  was  contended  that  the 
goods  were  carried  on  deck  with  the  consent  of  the  shipper,  it 
was  held  that:  "It  did  not  so  appear  in  the  bill  of  lading, 
which  was  what  is  called  a  clean  bill,  i.  e.,  it  was  silent  as  to  the 
mode  of  stowing  the  goods  and  contained  no  exception  to  the 
master's  liability,  but  the  usual  one  of  the  dangers  of  the  sea. 

A  bill  of  lading  therefore  imports,  unless  the  contrary 

appear  on  its  face,  that  the  goods  are  to  be  safely  secured  under 
deck."2 

In  an  action  for  the  loss  of  certain  whiskey  carried  on  deck 
and  washed  overboard,  it  was  held  that  owners  of  vessels  are 
responsible  in  any  event  for  the  loss  of  goods  stowed  on  deck, 
unless  such  stowage  is  authorized  by  the  cousent  of  the  shipper 
or  by  custom.^ 

1  Crabbe's  Reps.,  p.  534.  ^  Dorsey  v.  Suiitli,  4  La.  211. 

2  The  Waldo,  2  Ware's  Heps.,  165. 

66 


CHAP.  VII.]       CONFLICT    OF   LAWS   IN   BILL   OF   LADING. 


[§89. 


CHAPTER  VII. 

CONFLICT  OF  LAWS  IN  CONSTRUING  THE  BILL  OF  LADING. 


The  general  rule  as  to  the  law  that 

governs  eonstruction,  §  89. 
Consideration  of  the  cases,  §§  90,  91. 
The  Iowa  authorities,  §  92. 
Decisions  in  other  states,  §§  93,  94. 
Decisions  in  England,  §  95. 


Decision   by   U.    S.    Supreme   Court, 

§  96. 
"  The  law  of  the  ship,"  §  97. 
Divergent  opinions,  §  98. 
"The  law  of  the  court,"  §  99. 


§  89.  Bills  of  lading  are  frequently  given  by  carriers  in  one 
state  or  country  for  goods  to  be  transported  thence  and  deliv- 
ered in  another.     The  law  of  the  several  States  or  countries  in 

* 

or  through  which  the  transportation  is  to  be  made,  may  difter 
in  respect  to  the  validity  of  the  contract,  the  interpretation  of 
its  terms,  the  manner  of  its  performance  and  the  obligation  of 
the  parties  under  it. 

When  a  loss  or  breach  occurs  the  questions  arise :  By  what 
law  is  the  contract  to  be  governed  ?  By  the  law  of  the  place 
where  the  contract  is  made  (lex  loci  contractus)  or  by  the  law  of 
the  place  where  it  is  to  be  performed  {lex  loci  solationis)1  The 
answers  to  these  questions  are  important  and  are  not  without 
serious  difficulty.  Many  and  learned  authors  have  discussed 
the  subject  in  regard  to  contracts  generally  and  have  arrived  at 
difierent  conclusions.* 

It  is  believed,  however,  that  the  decisions  will  bear  out  the 
following  general  statement  in  regard  to  bills  of  lading,  namely, 
bills  of  lading  and  other  contracts  for  carriage  with  respect  to 
their  validity  and  interpretation  are  to  be  governed  and  con- 
strued by  lex  loci  contractus^  and  with  respect  to  the  mode  of 
performance  by  lex  loci  solutionis,  unless  a  contrary  intention  of 
the  parties  is  manifest  from  the  instrument  or  from  the  character 
of  the  transaction.  The  decisions  of  the  courts  are  discordant 
unless  harmonized  by  this  distinction.     Thus,  in  Pennsylvania, 


'   See  Wharton  on  Conf,  of  Laws,  §  401. 


67 


§  90.]  BILLS   OF   LADING.  .  [CHAP.  VII. 

two  cases  decided  a  year  apart,  apparently  irreconcilable,  are 
made  consistent.  In  Henry  v.  Philadelphia  Warehouse  Co.^  (de- 
cided in  1876)  Henry,  a  resident  of  Philadelphia,  bought  cotton 
in  New  Orleans  through  a  broker.  He  personally  paid  the  sellers 
and  gave  the  broker  an  order  on  the  sellers  for  the  cotton. 
The  broker  took  out  a  bill  of  lading  in  his  own  name  for  the 
shipment  to  Philadelphia,  made  a  draft  on  Henry  for  the  price, 
sold  the  draft  and  indorsed  the  bill  of  lading  to  the  purchaser 
as  security  for  the  draft.  By  the  law  of  Louisiana  bills  of 
lading  are  negotiable  by  indorsement.  It  was  held  that  the 
broker's  indorsement  of  the  bill  passed  the  title  to  the  -cotton 
to  the  purchaser  of  the  draft  and  that  the  transaction  must  be 
governed  by  the  law  of  Louisiana.  In  Brown  v.  Camden  and 
Atlantic  Railroad  Co.^  (decided  in  1877)  the  facts  were  as  fol- 
lows: B.  bought  a  ticket  from  the  railroad,  a  New  Jersey  cor- 
poration, and  delivered  his  trunk  to  the  company  at  Philadel- 
phia, to  be  taken  to  a  point  in  New  Jersey.  The  trunk  was 
lost,  but  it  did  not  appear  where  the  loss  occurred.  By  an  Act 
of  Assembly  of  Pennsylvania,  railroads  are  freed  from  liability 
for  loss  to  baggage  beyond  $300,  unless  the  value  is  declared. 
Here  it  was  held  that  the  carrier  could  not  have  the  benefit  of 
the  Act  and  that  the  case  was  governed  by  the  law  of  New 
Jersey.  Mr.  Justice  Sharswood  said:  "It  is  perfectly  well 
settled  by  a  host  of  authorities,  which  it  would  be  an  afiecta- 
tion  of  learning  to  cite,  that  it  is  the  law  of  the  place  of 
performance  by  which  the  mode  of  fulfilling  a  contract  and 
the  measure  of  liability  for  its  breach  must  be  determined." 

§  90.  The  distinction  stated  will,  it  is  believed,  be  found  to 
run  through  all  the  following  decisions.  It  m-ay  not  be  dis- 
tinctly marked  in  the  opinion,  but  a  careful  examination  of 
the  cases  will  generally  serve  to  bring  each  on  one  side  or  the 
other  of  the  line  of  demarkation  already  drawn. 

In  the  First  National  Bank  of  Toledo  v.  Shaw ,2  a  bill  of  lad- 
ing was  executed  in  Ohio  for  merchandise  there  shipped  to  be 
transported  to  a  place  in  the  State  of  New  York.  The  bill 
was  delivered  pursuant  to  a  contract  made  in  and  by  residents 

'  81  Penna.  St.  76.  »  61  N.  Y.  283. 

2  83  ib.  316. 

68 


CHAP.  VII.]      CONFLICT    OF   LAWS   IN   BILL   OF   LADING.  [§  91. 

of  Ohio,  to  one  there  making  advances  upon  the  faith  thereof 
and  to  secure  drafts  drawn  for  such  advances  on  parties  in  the 
State  of  Kew  York.     This  was  held  to  be  an  Ohio  contract,  to 
be  construed  by  and  under  the  laws  and  commercial  usages  of 
that  State.     The  court,  in  the  course  of  the  'opinion,  said:  "In 
the  more  general  case  where  a  contract  is  made  in  one  country 
and  to  be  performed  in  another,  it  is  not  always  easy  to  deter- 
mine according  to  the  authorities,  whether  the  interpretation 
of  the  words  is  to  be  governed  by  the  law  of  the  place  where 
the  contract  is  made  or  by  that  where  it  is  to  be  performed. 
The  general  principle  is,  that  the  law  of  the  place  where  the 
contract  is  made  is  to  govern,  unless  it  is  positively  to  be  per- 
formed elsewhere.     The  fact  that  acts  are  to  be  done  abroad 
under  a  contract,  does  not  necessarily  make  it  a  contract  to  be 
performed  there,  in  a  legal  sense.     Thus,  it  has  been  said  that 
a  policy  of  insurance  executed  in  England  on  a  French  ship  for 
a  French  owner,  on  a  voyage  from  one  French  port  to  another, 
is  to  be  interpreted  as  an  English  contract.^     The  true  inquiry 
is,  what  was  the  intent  of  the  parties  ?     It  would  seem  that  in 
a  case  like  the  present,  where  the  contract  was  made  in  Ohio, 
by  Toledo  parties,  the  money  being  advanced  there  and  the 
security  there,  that  they  had  in  view,  in  employing  words, 
their  own  usages,  even  though  the  goods  were  to  be  sent  to 
another  State  and  ultimately  sold  there  if  the  advances  were 
not  repaid." 

.§  91.  In  Dyke  v.  Erie  Railway ,2  a  suit  brought  for  damages 
for  injuries,  by  a  passenger,  a  statement  of  the  law  is  made  by 
Mr.  Justice  Allen  to  the  effect  that  the  generally  received  rule 
for  the  interpretation  of  contracts,  is  that  they  are  to  be  con- 
strued and  interpreted  according  to  the  laws  of  the  State  in 
which  they  are  made  unless  from  their  terms,  it  is  perceived 
that  they  were  entered  into  with  a  view  to  the  laws  of  some 
other  State.  "The  lex  loci  contractas"  he  continues,  "deter- 
mines the  nature,  validity,  obligation  and  legal  effect  of  the 
contract  and  gives  the  rule  of  construction  and  interpretation, 
unless  it  appears  to  have  been  made  with  reference  to  the  laws 

>  Don  V.  Lippman,  5  CI.  &  F.  1.  ^  45  N.  Y.  113. 

69 


§  92.]  BILLS   OF   LADING.  [CHAP.  VII. 

and  usages  of  some  other  State  or  government,  as  when  it  is  to 
be  performed  in  another  place  and  then  in  conformity  to  the 
presumed  intention  of  the  parties,  the  law  of  the  place  of  per- 
formance furnishes  the  rule." 

Where  goods  wej:'e  shipped  under  a  contract  made  at  Boston 
and  the  bill  of  lading,  containing  an  exception  of  fire,  was  not 
delivered  to  the  consignor  till  the  goods  were  in  transitu,  and 
they  were  destroyed  in  the  great  Chicago  fire,  it  was  held  that 
the  lex  loci  contractus,  i.  e.,  the  law  of  Massachusetts,  governed 
the  case,  which  law  requires  the  bill  to  be  taken  without  dis- 
sent by  the  consignor  at  the  time  of  shipment,  in  order  to  make 
it  binding  upon  him.^  It  is  held  in  Illinois  to  be  "an  estab- 
lished principle,  with  respect  to  personal  contracts,  that  the  law 
of  the  place  where  they  are  made  shall  govern  in  their  construc- 
tion, except  when  made  with  a  view  to  performance  in  some 
other  State  or  country,"^  and  in  an  Iowa  case  where  the  contract 
of  shipment  had  been  made  by  the  consignors  on  behalf  of  the 
consignees,  in  Massachusetts,  it  was  held  that  if  the  contract 
was  valid  in  the  State  where  made,  it  would  bind  a  consignee 
residing  in  another  State.^ 

§  92.  The  laws  of  Iowa  forbid  any  contract  limiting  the 
common  law  liability  of  a  carrier.  A  contract,  made  in  that  State 
for  the  transportation  of  cattle  to  Chicago,  contained  an  excep- 
tion of  fire.  It  was  held  that  a  contract  void  or  illegal  where  it 
is  made  is  so  everywhere.  Hence,  it  would  not  help  the  carrier 
if  the  contract  were  to  be  entirely  performed  in  Illinois.  This 
contract  was,  however,  to  be  partly  performed  in  Iowa  and  was 
entire  and  indivisible.  Hence,  the  carrier  was  fully  liable  as  at 
common  law.^  In  a  later  case  in  the  State  of  Iowa  the  following 
facts  appeared :  Goods  were  shipped  at  Hartford,  Connecticut,  for 
Des  Moines,  Iowa  and  were  destroyed  en  route  by  fire  in  Chicago, 
Illinois.  The  contract  of  carriage  exempted  the  carrier  from 
loss  by  fire.     Such  a  contract  was  legal  in  Connecticut  but  not 

>  M.  C.  R.  R.  Co.  V.  lioyd,  91   111.  »  Robinson    v.    M.    D.    T.  Co.,  45 

268.  lowii,  4  70. 

2  M.  &  St.  P.  R.  R.  Co.  V.   Smith,  *  McDaniel  v.C.  &N.  W.  Rl'y  Co., 

74  ib.  197;   The  Pennsylvania  Co.  v.  24  ib.  412. 
Fairchild,  G9  ib.  260. 
70 


CHAP.  VII.]      CONFLICT    OF   LAWS   IN   BILL    OF   LADING.  [§  93. 

ill  Iowa  where  any  restriction  of  the  common  law  liability  by 
contract  was  forbidden  by  chapter  113  of  the  laws  of  1866.  It 
was  held  in  an  action  for  damages  for  the  loss  that  the  contract 
was  a  valid  one;  that  the  plaintiff  could  not  recover  and  that 
where  there  are  several  possible  local  laws  applicable  to  the  case, 
that  law  is  to  be  applied  which  is  most  favorable  to  the  con- 
tract.' This  case  would  seem  to  be  a  divergence  from  the  track 
of  otlier  decisions,  but  the  learned  judge  in  alluding  to  the  case 
of  McDaniels  v.  The  C.  &  N.  W.  R.  R.  Co.,  says  in  his  opinion : 
''Applying  the  rule  of  that  case  to  this,  it  seems  necessarily  to 
follow,  that  since  this  contract  was  made  in  Connecticut  and 
was  there  to  be  partly  performed,  its  validity  and  effect  should 
be  determined  by  the  law  of  that  State.  But  without  deter- 
mining that  such  a  rule  should  be  applied  to  its  full  extent  to 
every  contract  or  even  to  this,  we  here  ground  our  decision  of 
this  cause  upon  the  special  facts  of  the  case  which  show  that 
the  contract  as  made  was  valid  in  Connecticut,  where  the  con- 
tract was  made  and  in  Illinois  where  the  loss  occurred.  Whether 
a  difterent  rule  would  apply  if  the  defendants  had  entered  upon 
the  performance  of  their  contract  in  Iowa  and  the  loss  had 
there  occurred,  we  need  not  determine."^ 

§  93.  A  contract  was  made  in  Iowa  for  the  sale  of  intoxi- 
cating liquor.  The  liquor  was  delivered  in  Wisconsin  to  a 
carrier  for  the  vendee.  In  an  action  for  the  price,  the  defence 
was  that  the  contract  was  void  under  the  low^a  statute  pro- 
hibiting the  sale  of  intoxicating  liquors  and  under  the  Wis- 
consin statute  of  frauds  for  want  of  a  writing.  The  plaintiffs 
replied  that  the  contract  was  executed  in  Wisconsin  and  rati- 
fied by  the  vendee's  acceptance  through  the  carrier  of  the  goods 
delivered  to  it.  The  carrier  had  been  designated  at  the  time  of 
the  contract  by  the  parties.  It  was  held  that  delivery  to  the 
carrier  designated  by  the  purchaser  might  have  been  an  accept- 
ance of  the  goods  in  the  State  of  Wisconsin  and  an  execution 
of  the  contract  there,  if  the  coytract  had  not  been  void  by  the 

'  Talbotti'.  Merchants' Desp. Trans,  held   app4icable  in  u   case   of  alleged 

Co.,  41  Iowa,  247.  usurious  interest  where  the  rate  of  in- 

*  See     Arnold    v.    Potter,     22    ib.  terest  differed  in  the  two  States. 
194,  where  the  lex  loci  contractus  was 

71 


§  94.]  BILLS   OF   LADING.  [CHAP.  VII. 

statute  of  frauds.  Such  a  delivery  under  a  void  contract,  how- 
ever, does  not  take  it  out  of  the  statute.^ 

Goods  were  shipped  at  Bethany,  Georgia,  under  a  contract 
for  limited  liability,  to  Chicago,  Illinois,  and  were  stolen  after 
their  arrival.  A  statute  of  Illinois  prohibited  common  carriers 
from  limiting  their  common  law  liability.  In  a  suit  for 
damages  for  the  loss  of  the  goods  brought  in  the  Circuit  Court 
of  the  United  States,  it  was  held  that  the  statute  did  not  apply 
as,  though  the  route  of  the  carrier  to  whom  the  goods  were 
lirst  delivered  ended  at  Cairo,  Illinois  from  whence  the  goods 
were  shipped  to  destination  by  the  defendant  carrier,  yet  the 
contract  was  made  in  Georgia  where  limitations  of  liability  are 
legal.^  The  liability  of  a  common  carrier  who  undertakes  in 
Mexico  to  convey  goods  from  the  territory  of  that  government 
into  Texas,  is  to  be  determined  according  to  the  laws  of  Mexico 
which  excuses  a  carrier  if  the  loss  is  caused  by  superior  force. 
"Where,  however,  the  property  was  contraband  of  war  and  was 
taken  from  the  carrier  by  Confederate  soldiers,  it  was  held  that 
owing  to  the  unlawful  nature  of  the  transaction  the  contract 
could  not  be  enforced.^  In  an  Alabama  case  it  was  said  by 
the  court  in  an  action  on  a  contract  which  was  entered 
into  and  to  be  performed  wholly  in  another  State,  that  it 
will  be  presumed,  in  the  absence  of  proof  to  the  contrary, 
that  the  common  law  as  to  carriers  prevails  in  that  other 
State." 

§  94.  In  Gray  v.  Jackson,^  a  carrier  in  ]^ew  Hampshire 
received  goods  marked  for  delivery  beyond  his  route  in  Massa- 
chusetts. He  carried  them  to  his  terminus  and  there  delivered 
them  to  the  connecting  carrier  by  whom  they  were  lost.  In 
his  opinion  Mr.  Justice  Doe  says :  "  The  authorities  on  a  car- 
rier's liability  beyond  his  own  route  seem  not  generally  to  put 
it  upon  the  law  of  the  State  in  which  his  contract  is  to  be  per- 
formed.    Neither  do  they  expressl}'^  make  an  exception  to  take 

•  Keiwert  v.  Meyer,  62  Ind.  587.  *  S.   W.   R.  R.    Co.   v.  Webb,  48 

2  Mather  v.   American  E».  Co.,   2     Ala.  585. 

Federal  Reporter,  49 ;    see  also  My-         *  Gray  v.  Jackson,  51  N.  H.  39  ; 
nard  v.  R.  R.  Co.,  71  N.  Y.  180.  see  also  Faulkner  v.  Hast,   82  N.  Y. 

3  Cantu  V.  Bennett,  39  Tex,  303.         413. 

72 


CHAP.  VII.]      CONFLICT    OF   LAWS   IN    BILL   OF    LADING.  [§  95. 

this  class  of  cases  out  of  the  general  rnle  that  the  construction 
and  force  of  a  contract  are  governed  by  the  law  of  the  State  in 
which  it  is  to  be  executed.  If  the  part  of  the  defendant's  con- 
tract which  was  to  be  performed  in  Massachusetts,  is  governed 
by  the  law  of  Massachusetts,  the  decisions  of  that  State  furnish 
no  ground  for  granting  a  new  trial  in  this  case." 

In  Barter  v.  Wheeler,'  in  the  same  State,  it  has  been  held 
that  when  a  contract  is  made  in  one  State  to  transport  goods 
over  a  line  extending  through  two  or  more  States  and  the  goods 
are  lost  by  an  intermediate  carrier,  the  obligation  of  this  car- 
rier under  the  contract  upon  his  portion  of  the  route,  shall  be 
governed  by  the  law  of  the  State  in  which  his  part  of  the  con- 
tract is  performed. 

§  95.  The  diversity  of  opinion  and  the  unsettled  condition 
of  the  law  of  England  on  this  subject  is  well  shown  in  the 
case  of  Cohen  v.  South  Eastern  Railway  Co.,  decided  in  1877.^ 
The  plaintiff's  wife  was  a  passenger  who  took  a  ticket  at 
Boulogne  to  travel  from  that  place  to  London  via  Folkestone 
by  the  South  Eastern  Company's  steamer  from  Boulogne  to 
Folkestone  and  by  their  railway  from  Folkestone  to  London. 
There  was  a  provision  on  the  ticket  which  excluded  the  liability 
of  the  company  for  the  loss  of  passengers'  luggage,  if  the  value 
thereof  exceeded  a  certain  sum.  This  lady's  box,  by  the  care- 
lessness of  the  company's  servants,  was  dropped  into  Folke- 
stone harbor  and  the  contents  were  greatly  damaged.  The  first 
question  that  arose  was,  by  what  law  the  case  was  to  be  gov- 
erned, the  law  of  England  or  that  of  France?  Opinions  were 
filed  by  three  justices,  Mellish,  L.  J.,  Baggalay,  J.  A.,  and 
Brett,  J.  A.  In  the  course  of  their  opinions  each  recognized 
the  importance  and  difiiculty  of  the  question  and  refrained 
from  deciding  it,  but  each  expressed  his  personal  opinion.  The 
first  and  last  named  inclined  to  the  belief  that  the  contract 
should  be  governed  by  the  law  of  England.     Baggalay,  J., 

'  49  N.   H.   29.     A  careful  exami-  rights  of  the  parties  will  be  governed 

nation  of  this  case  discloses  the  fact  generally   by   the    laws    of  the   state 

that  the  reporter  has  misconstrued  the  where  the  loss  happens." 

opinion  of  the  court,  and  is  not  correct  *  2  L.  R.  Exch.  Div.  253. 
in  stating  in  the   syllabus  that   "the 

73 


I  96.]  BILLS   OF   LADING.  [CHAP.  VII. 

however,  thought  that  it  properly  should  be  regarded,  at  least 
in  part,  as  a  French  contract.* 

In  Meyer  v.  Dresser, ^  it  was  held  that  the  law  of  a  foreign 
country  entitling  the  consignee  to  reduce  the  claim  against 
him  for  freight  by  the  value  of  goods  put  on  board  and  lost, 
but  which  amounted  to  an  allowance  by  way  of  set-off"  and  not 
to  an  extinguishment  of  the  claim  for  freight,  was  matter  of 
procedure  only  and  therefore  did  not  apply  to  an  action  for 
freight  brought  in  England  against  the  consignee.  In  Moore 
V.  Harris,^  a  bill  of  lading  made  in  England  by  the  master  of 
an  English  ship  stipulated,  that  packages  of  tea  were  "to  be 
delivered  from  the  ship's  deck,  Avhere  the  ship's  responsibility 
shall  cease,  at  the  port  of  Montreal  unto  the  Grand  Trunk 
Railway  Co.,  ....  to  be  forwarded  thence  ....  to  Toronto 
and  ....  delivered  to  the  consignees  or  to  their  assigns." 
Among  other  conditions  was  the  following:  "  ^o  damage  that 
can  be  insured  against  will  be  paid  for,  nor  will  any  claim  what- 
ever be  admitted  unless  made  before  the  goods  "are  removed." 
The  tea  was  landed,  placed  in  certain  shipping  sheds,  thence 
removed  to  railway  freight  sheds  and  finally  delivered  to  con- 
signees at  Toronto.  No  notice  was  given  of  damage  until  thir- 
teen days  after  the  delivery  was  completed.  The  tea  was  found 
impregnated  with  the  smell  of  chloride  of  lime  and  carbolic 
acid.  The  court  held  that  the  bill  of  lading  was  governed  by 
Eno-lish  law  and  that  the  consideration  as  to  the  time  of  mak- 
ing  claim  for  damages  was  binding  on  the  consignees. 

§  96.  In  Liverpool  &  Great  Western  Steam  Company  v.  Phoenix 
Ins.  Co.,*  it  was  held  that  a  bill  of  lading  made  in  an  American 
port  by  an  American  shipper,  with  the  owners  of  a  ship  who 
were  English,  for  the  shipment  of  goods  to  England,  where  the 
freight  was  payable  in  English  currency,  was  an  American  con- 
tract and  governed  by  American  law,  so  far  as  regarded  the 
effect  of  a  stipulation  exempting  the  company  from  responsi- 

'  SeealsoThePatria,  3L.K.  Adm.  983;   10  L.T.N.   S.  612;  IG  C.  B. 

Div.  436,  where  the  law  affecting  bills  N.  S.  646. 

of  lading   is   discussed,    but   not   de-  "  i    l.  r.   p.    c.  App.   Cas.  318; 

eided.  45  L.  J.  P.  C.  55  ;  34  L.  T.  N.  S. 

2  33  L.  J.   C.  P.   289;  12  W.  R.  519;  24  W.  R.  887. 


*  129  U.  S.  397. 


74 


CHAP.  VII.]      CONFLICT    OF   LAWS   IN   BILL    OF   LADING.  [§  98. 

bilitj  for  the  negligence  of  its  servants  in  the  course  of  the 
voyage. 

§  97.  Even  greater  difficulty  is  experienced  in  determining 
the  law  governing  contracts  for  carriage  by  water  than  in  that 
governing  contracts  for  land  carriage.  Ships  make  contracts 
in  many  countries  and  have  many  others  in  which  to  fulfil 
them.  Under  these  circumstances  in  addition  to  lex  loci  con- 
tractus and  lex  loci  solutionis  there  has  appeared  that  which  is 
sometimes  called  "  the  law  of  the  ship."  A  contract  may  be 
executed  in  a  foreign  port  to  be  fulfilled  in  another  foreign  port. 
In  such  cases  decisions  have  been  had  making,  not  the  law  of  the 
place  of  making  nor  that  of  performance,  the  rule  of  construc- 
tion, but  the  law  of  the  place  of  residence  of  the  ship's  owners 
and  of  the  registration  of  the  vessel,  that  is,  the  law  of  the  ship. 
So  decided  Mr.  Justice  Story,  in  the  case  of  Pope  v.  Nicker- 
son.'  Here  a  vessel  owned  in  Massachusetts,  gave  bills  of 
lading  for  freight  in  Spain  to  be  delivered  in  Philadelphia  and 
was  obliged  to  put  into  Bermuda  where  the  vessel  and  cargo 
were  sold  b}'  the  master.  It  was  held  in  a  suit  brought  on  the 
bills  of  lading,  that  the  law  governing  the  contract  was  not  the 
law  of  Spain  where  the  contract  was  made,  nor  yet  the  law  of 
Pennsylvania  where  it  was  to  be  performed,  but  the  law  of 
Massachusetts,  where  the  owners  of  the  ship  resided  and  where 
the  ship  was  registered.  By  the  law  of  Spain  and  Pennsylvania 
the  master  could  bind  the  owners  beyond  the  value  of  the  ship. 
By  the  law  of  Massachusetts  he  could  not.  Hence  the  import- 
ance of  the  decision.  The  ground  taken  was  that  when  a  "  ship 
is  owned  and  navigated  under  the  flag  of  a  foreign  country,  the 
authority  of  the  master  to  contract  for  and  bind  the  owners 
must  be  measured  by  the  laws  of  that  country,  unless  he  is  held 
out  to  persons  in  other  countries  as  possessing  a  more  enlarged 
authority." 

§  98.  The  soundness  of  this  decision  is  questionable.  Mr. 
Chief  Justice  Taney  in  Naylor  v.  Battzell,^  decided  in  the 
Circuit  Court  of  the  United  States  for  the  district  of  Maryland, 
comes  to  a  difterent  conclusion  and  two  well  considered  opin- 
ions^  rendered  by  justices  of  the  Supreme  Court  of  Louisiana, 

'  3  Story  Rep.  465.      ,  2  Taney's  C.  C.  Dec.  55. 

75 


§  99.]  BILLS   OF   LADING.  [CHAP.  VII. 

on  a  state  of  facts  similar  to  that  in  Pope  v.  ITickerson  oppose 
Mr.  Justice  Story's  view.*  In  Arrayo  v.  Currell,^  Mr.  Justice 
Martin  says :  "  If  there  be  a  principle  better  established  than 
any  other  on  the  subject  of  the  conflict  of  law,  it  is,  that  con- 
tracts are  governed  by  the  laws  of  the  country  in  which  they  are 
entered  into,  unless  they  be  so  with  a  view  to  a  performance  in 
another.  Every  writer  on  that  subject  recognizes  it.  Judicial 
decisions  again  and  again  through  the  civilized  world  have 
sanctioned  it.  .  .  .  "Whoever  contracts  in  a  particular  place 
subjects  himself  to  its  laws,  as  a  temporary  citizen.  The  idea 
that  the  law  of  a  man's  domicil  follows  him  through  the  world 
and  attaches  to  all  his  contracts,  is  as  novel  as  unfounded. 
This  proposition  was  not  indeed  maintained  in  general  terms, 
but  that  offered  to  the  court,  in  relation  to  the  contract,  is 
identical  with  it  and  it  is  impossible  for  us  not  to  feel  that  if 
the  defendant  and  appellant  is  to  have  the  contract  decided  by 
the  laws  of  Louisiana,  it  will  be  equivalent  to  a  declaration  of 
this  amount,  that  an  inhabitant  of  this  State  carries  its  laws 
with  him  wherever  he  goes  and  they  regulate  and  govern  his 
contracts  in  foreign  countries, — that  whether  a  man  contracts 
with  him  in  Paris  or  London,  our  municipal  regulations  are 
the  measure  of  the  rights  and  duties  of  both  parties  to  the  con- 
tract. That  the  legislature  of  Louisiana  may  have  a  right  to 
regulate  the  contracts  of  her  own  citizens  in  every  country,  so 
long  as  they  owe  her  allegiance,  may  or  may  not  be  true.  But 
where  the  citizen  contracts  abroad,  with  a  foreigner,  it  is  evi- 
dent the  rule  must  be  limited  in  its  operation.  The  legislature 
may  refuse  permission  to  enforce  the  agreement  at  home,  but 
abroad  and  particularly  where  the  agreement  is  entered  into, 
it  is  valid." 

§  99.  Lex  fori  or  the  law  of  the  court  in  which  a  proceeding 
is  brought  for  the  enforcement  of  a  right  under,  or  the  remedy 
for  a  breach  of,  the  contract  relates  to  the  form  of  the  remedy 
and  the  mode  of  enforcing,  to  the  conduct  of  the  suit  in  court, 
the  rules  of  evidence  and  to  procedure,^  but  the  nature  and 
character  of  the  remedy — for   instance  the   measure   of  civil 

'  Malpica  v.  McKown,  1  La.  Rep.  ^  The  Halley,  2  L.  R.  Adm.  & 
249;   Arrayo  v.  Currell,  ib.  628.  Ec,  10. 

^  La.  Rep.  528. 

76 


CHAP.  VII.]       CONFLICT    OF   LAWS    IN    BILL   OF   LADING.  [§  99. 

damages  for  a  breach  of  contract  or  for  the  non-fulfilmeut  of 
any  legal  obligation,  is  not  to  be  regulated  by  lex  fori.  These 
are  generally  governed  by  lex  loci  contractus} 

In  a  comparatively  recent  case  it  was  held  that  whatever  con- 
cerns the  rights  of  parties  in  matters  of  contract  is  governed 
by  the  lex  loci  contractus,  and  the  remedy  and  whatever  relates 
to  the  limitation  of  actions,  by  the  lex  fori} 

'  The  Halley,  2  L.  R.  Adm.  &  Ec.  WiUings,    Peters    C.    C.    225 ;    The 

10  ;   Story  on  Conf.  of  Laws,  §    558  Zollverein,  Swab.  98. 

and  cases  cited  ;  Courtois  v.  Carpen-  ^  Brooke  v.  N.  Y.,  L.  E.  &  AV.  R. 

tier,  1  Wash.  C.  C.  376;   Consequa  v.  R.  Co.,  108  Pa.  St.,  530. 

77 


§  100.] 


BILLS   OF   LADING. 


[chap.  VIII. 


CHAPTER  VIIT. 

THE  RIGHT  OF  CARRIERS  TO  LIMIT  THEIR  COMMON  LAW 

LIABILITY. 


The  law  in  England,  §  100. 

Reduced  freight  a  good  consideration 

for  diminished  liability,  §  101. 
Is    the   carrier   with    limited   liability 

simply  a  bailee  for  hire  ?  §  102. 
Rule  as  to  the  right  to  limit  liability  as 

laid  down  by  the  Federal  Courts,  §§ 

103,  104. 
Rule  in  Alabama,  §  105. 
Rule  in  Arkansas,  §  106. 
Rule  in  California,  §  107. 
Rule  in  Colorado,  §  108. 
Rule  in  Connecticut,  §  109. 
Rule  in  Dakota,  §  110. 
Rule  in  Delaware  and  Florida,  §  111. 
Rule  in  Georgia,  §  112. 
Rule  in  Illinois,  §  113. 
Rule  in  Indiana,  §  114. 
Rule  in  Iowa,  §  115. 
Rule  in  Kansas,  §  116. 
Rule  in  Kentucky,  §  117. 
Rule  in  Louisiana,  §  118. 
Rule  in  Maine,  §  119. 


Rule  in  Maryland,  §  120. 

Rule  in  Massachusetts,  §  121. 

Rule  in  Michigan,  §122, 

Rule  in  Minnesota,  §  123. 

Rule  in  Mississippi,  §  124. 

Rule  in  Missouri,  §  1  25. 

Rule  in  Nebraska,  §  126. 

Kule  in  New  Hampshire,  §  127. 

Rule  in  New  Mexico,  §  128. 

Rule  in  New  York,  §  129, 

Rule  in  New  Jersey,  §  130. 

Rule  in  North  Carolina,   §  131. 

Rule  in  Ohio,  §  132. 

Rule  in  Pennsylvania,  §  133. 

Rule  in  South  Carolina,  §  134. 

Rule  in  Tennesse,  §  135. 

Rule  in  Texas,  §  136. 

Rule  in  Vermont,  §  137. 

Rule  in  Virginia,  §  138. 

Rule  in  West  Virginia,  §  139. 

Rule  in  Wisconsin,  §  140. 

The  general  American  rule,  §  141. 


§  100.  At  common  law  a  common  carrier  is  an  insurer  of 
the  property  received  by  him  for  transportj^tion  against  all  loss 
and  damage  happening  thereto  while  under  his  control  unless 
occasioned  by  the  act  of  God  or  the  public  enemy.^  The  ques- 
tion was  early  raised  whether  the  carrier  could  limit  his  common 


'  Price  V.  Hartshorn,  44  Barb.  (N.  Merchants'  Bank,  6  Howard,  344  ; 
y.)  655  ;  Fish  v.  Chapman,  2  Georgia,  Richards  v.  Hansen,  1  Fed.  Rep.  54. 
349 ;  New  Jersey  Steam  Nav.  Co.  v. 

78 


CHAP.  VIII.]  CARRIERS    TO   LIMIT    LIABILITY.  [§  100. 

law  liability  by  a  special  contract.^  By  the  early  part  of  this 
century  it  came  to  be  settled  law  in  England  that  the  earner 
could  so  limit  his  liability  even  to  the  extent  of  exempting 
himself  from  the  consequences  of  his  own  negligence."  Later 
legislation  has  however  modified  the  laxity  of  the  rule  laid 
down  by  the  courts.  Thus  the  Railway  and  Canal  Traffic  Act, 
17-18  Victoria,  C.  31,  sec.  7,  provides  that  no  special  contract 
shall  be  binding  upon  the  party  unless  signed  by  him  or  the 
person  delivering  the  goods  to  be  carried  and  also  requires  that 
the  conditions  of  such  contract  shall  be  just  and  reasonable. 
The  eft'ect  of  this  act  was  to  leave  to  the  courts  the  final  deci- 
sion as  to  whether  any  particular  contract  between  a  shipper 
and  a  carrier  contained  a  reasonable  and  just  limitation  of  the 
carrier's  liability .^    The  Railway  and  Canal  Traflic  Act  was  not 


1  Southcote's  Case,  4  Rep.  84 
(1601);  Morse  v.  Slue,  1  Vent.  190 
(1684)  ;  Hide  v.  Proprietors,  1  Esp. 
36. 

2  Nicholson  v.  AVillan,  5  East,  507; 
Anonymous  v.  Jackson,  Peake's  Add. 
Cas.,  183  ;   Covington  i;.Willan,  Gow, 
115  ;  Munn   v.   Baker,  2  Stark.  226  ; 
Clay  V.  Willan,  1  H.  Bl.  298 ;  Clarke 
V.  Gray,  6  East,  564  :   Hyde  v.  Trent. 
Nav.    Co.,    5   T.    R.    389;    Izett   v. 
Mountain,    4    East,    371  ;    Ranger   v. 
Great  Western  R.  R.  Co.,  1  Railway 
&  Canal  Cas.  1  ;    Riley  v.  Home,  5 
Bing.    217  ;    Harris   v.  Packwood,    3 
Taunton,  264  ;   Smith  r.  Home,  8  ib. 
144 ;  Leeson   v.  Holt,    1    Stark.  148  ; 
Beck  V.  Evans,  16  East,  244  ;  Lowe  v. 
Booth,  13  Price,  329;   Wyld  v.  Pick- 
ford,   8  M.  &  W.  443  ;    Carr  v.  Lan- 
cashire, etc.,  R.  R.  Co.,  7  Exch.  707  ; 
Kirk,  etc.,  R.  R.  Co.  v.  Crisp,  14  C. 
B.  527  ;   Slim  v.  Great  Northern  R.  R. 
Co.,    14  C.    B.    647 ;   Chippendale   v. 
Lancashire,   etc.,    R.  R.  Co.,    7  Rail- 
way &  Canal  Cas.  824  ;  Great  North- 
ern R.  R.  Co.  V.  Morville,   7  ib.  830 ; 
Austin  V.  Manchester,  etc.,  R.  R.  Co., 


10   C.  B.  454;   S.  C.  16   Q.  B.   600; 

Shaw  V.  York,  etc.,  R.  R.  Co.,  13  Q. 

B.  347  ;   6  Railway  Cas.  87  ;  Macauley 

V.  Furness  R.  R.  Co.,  21  W.  R.  140; 

27    L.   T.    N.    S.    485  ;  Taubman   v. 

Pacific  Steam  N.   Co.,   26  L.  T.,  N. 

S.  704  ;  Glenister  v.  Great  Western  R. 

R.  Co.,  22  W.  R.  72  ;   29  L.  T.  N.  S. 

423  ;  Gallin  v.  L.  &  N.  W.  R.  R.  Co., 

L.  R.  10  Q.  B.  212;  Phillips  v.  Clark, 

2  C.  B.  N.  S.  156  ;  3  Jur.  N.  S.  467  ; 

26  L.  J.  C.  P.  166. 

Canadian  Cases  :  La  Pointe  v.  Grand 

Trunk   R.    R.    Co.,   26    U.    C.  Q.  B. 

479  ;    Dodson   v.    Grand   Trunk    Ry. 

Co.,  7  Canada,  L.  J.  N.  S.  263,  S.  C. 
of  Nova  Scotia  ;  English  rule  is  defined 
in  Camp.  v.  H.  N.  Y.  Stm.  Co.,  41 
Conn.  333. 

3  See  also  31  and  32  Vict.,  C.  119, 
sec.  16;  34  and  35  Vict.,  C.  78,  sec 
12;  Baxendale  v.  Great  Eastern  Ry, 
Co.,  38  L.  J.  Q.B.  137;  4  L.  R.  Q 
B.  244;  17  W.  R.  412;  10  B.  &  S 
212;  Morville  v.  Great  Northern  Ry 
Co.,  16  Jur.  528  ;  21  L.  J.  Q.  B.  319 
Wise  V.  Great  Western  Ry.  Co.,  1  H 
&  N.  63  ;  25  L.  J.  Exch.  258. 
79 


§  101.]  BILLS    OF    LADING.  [CIIAP.  VIII. 

adopted  in  Canada,^  but  the  Railway  Act  of  1879  (42  Vict.  C.  9, 
sec.  25,  subsec.  4)  declared  that  the  party  aggrieved  by  any 
neglect  or  refusal  in  the  premises  should  have  an  action  there- 
for against  the  company,  from  which  action  the  company 
should  not  be  relieved  by  any  notice,  condition  or  declaration, 
if  the  damage  had  arisen  from  any  negligence  or  omission  of 
the  company.  Hence  it  was  held  that  a  carrier  did  not  escape 
where  stock  was  killed  or  lost  by  its  negligence  though  carried 
under  a  bill  of  lading  whereby  they  were  carried  entirely  at  the 
owner's  risk.^ 

§  101.  In  the  United  States  it  has  been  held  in  most  of  the 
States  that  carriers  may  limit  their  liability  except  for  neg- 
ligence, but  in  order  to  make  the  contract  for  diminished  lia- 
bility binding  there  must  be  a  consideration  therefor.  A  lower 
rate  of  freight  is  a  sufficient  consideration.^  Thus  where  a 
shipper  refuses  to  give  the  value  of  goods  when  asked,  the  car- 
rier may  limit  his  liability  and  under  such  circumstances  a 
carriage  at  a  reduced  rate  is  a  good  consideration  for  an  arbi- 
trary limitation  of  value  on  goods  contained  in  the  bill  of  lad- 
ing.^ In  the  State  of  New  York  where  a  carrier  agreed  to 
transport  cattle  at  less  than  one-half  the  usual  rates  under  a 
special  contract  releasing  him  from  liability  for  loss  "  from 
whatever  cause  arising,"  it  w^as  held  that  the  contract  was 
valid  and  exonerated  the  carrier  from  liability  for  any  injury  to 
the  cattle  due  to  the  negligence  of  his  employe.'  Shippers  may 
contract  in  consideration  of  reduced  freight  to  exempt  the  car- 
rier from  responsibility  for  over-crowding  and  suffocation  of 
life-stock  and  having  made  such  contract  are  bound  by  it.^ 

1  Hamilton  v.  Railway  Co.,  23  U.  H.  R.  R.  Co.,  48  N.  Y.  498;  Georgia 
C.  Q.  B.  600;  Harris  v.  Ednionstone,  R.  R.  Co.  v.  Spears,  66  Georgia,  485  ; 
4  Low.  Can.  Jur.  40;  Samuel  v.  Ed-  Jennings  v.  Grand  Trunk  Ry.  Co.,  52 
mondstone,  1  Low.  Can.  Jur.  89;  Hun  (N.  Y.),  227  ;  McFadden  y.  Mo. 
Stevenson  v.  Gildersleeve,  2  U.  C.  C.  Pac.  Ry.  Co.,  92  Mo.  843. 

P.  495.  ■•  Mather  v.  American  Express  Co., 

2  Dodson  V.  Grand  Trunk  Ry.  Co.,     2  Fed.  Rep.  49. 

7  Can.  Law  Journal,  263.  «  Mynard  v.  S.  B.  &  N.  Y.  R.  Co., 

3  Dillard  v.  Louisville,  etc.,  R.  R.  7  Hun  (N.  Y.),  399. 
Co.,2Lea(Tenn.),  288;  B.&O.R.R.        «  Squire  v.  N.  Y.  C.  R.  R.    Co., 
Co.  V.  Brady,  32  Md.  333  ;  Nelson  v.  98  Mass.  239. 

80 


CHAP.  VIII.]  CARRIERS    TO    LIMIT    LIABILITY.  [§  103. 

•  §  102.  In  some  of  the  cases  the  question  has  been  raised 
whether  a  carrier  transporting  under  a  bill  of  lading  or  other 
contract  limiting  his  liability,  is  a  special  bailee  for  hire  or  is 
still  a  common  carrier  with  enlarged  exemption.  In  most  of  the 
States  where  the  question  has  been  discussed,  it  has  been  held 
that  notwithstanding  a  special  contract,  a  common  carrier  still 
remains  such  and  is  responsible  for  a  higher  degree  of  diligence 
than  an  ordinary  bailee.  If  there  be  any  fault  or  negligence  he 
is  liable  in  spite  of  the  contract.*  Hence  the  proof  of  a  loss 
v.'ithin  an  exception  in  the  bill  of  lading  makes  Out  a  liriina 
facie  case  against  the  carrier  and  puts  upon  him  the  onus  of 
proving  that  it  was  not  due  to  his  negligence.^  In  Pennsyl- 
vania the  rule  is  different.  In  that  State  the  decisions  give  to 
a  special  contract  the  effect  of  converting  the  common  carrier 
into  a  special  bailee  for  hire,  whose  duties  are  governed  by  his 
contract  and  against  whom,  if  negligence  be  charged,  it  must 
be  proved  by  the  party  injured.^ 

§  103.  The  right  of  a  common  carrier  to  restrict  his  common 
law  liability  by  special  contract  has  been  fully  considered  in 
the  Federal  Courts  where  the  following  propositions  are  estab- 
lished :  that  carriers  can  limit  their  common  law  liability  by 
written  contract ;  "  that  they  cannot  lawfully  stipulate  for  ex- 
emption from  responsibility  when  such  exemption  is  not  just 
and  reasonable  in  the  e^'C  of  the  law  and  that  it  is  not  just 
and  reasonable  in  the  eye  of  the  law  for  a  common  carrier  to 
stipulate  for  exemption  from  responsibility  for  the  negligence 


'  Kirby  v.  Adams  Express  Co.,  2  2  Dillanl  v.  L.  &  N.  R.  R.  Co.,  2 
Mo.  App.  369;  Drew  v.  Red  Line  Lea  (Tenn.),  288;  Steele  v.  Town- 
Transit  Co.,  3  Mo.  App.  495;  A.  &  send,  37  Ala.  247. 
N.  R.  R.  Co.  V.  Washburn,  5  Neb.  3  Verner  v.  Sweitzer,  32  Pa.  St. 
117  ;  Steele  v.  Townsend,  37  Ala.  208;  Farnhara  h.  C.  &  A.  R.  R.  Co., 
247;  Brown  v.  Adams  Ex.  Co.,  15  55  ib.  53;  American  Express  Co.  w. 
W.  Va.  812;  Kimball  v.  Rutland  &  Sands,  ib.  140;  Patterson  v.  Clyde, 
Burlington  R.  R.  Co.,  26  Vt.  248;  67  ib.  500  ;  R.  R.  Co.  v.  Lockwood,. 
Lamb  v.  C.  &  A.  R.  R.  and  Transit  17  .Wall.  357.  See  also  Moore  v. 
Co.,  2  Daly,  454;  Lengsfield  v.  Jones,  Evans,  14  Barbour  (N.  Y.),  524; 
11  La.  Ann.  Rep.  624;  Hunt  wl  Mor-  "Simmons  v.  Law,  3  Keyes  (N.  Y.), 
ris,  6  Martin  (La.),  676.  217, 

6  81 


§  103.]  BILLS   OF   LADING.  [CBAP.  VIII. 

of  himself  or  his  servants."'  In  York  Co.  v.  Central  R.  R.  Co.,^ 
Mr.  Justice  Field  said:  "The  right  of  a  common  carrier  to 
limit  his  responsibility  by  special  contract  has  long  been  the 
settled  law  in  England.  It  was  the  subject  of  frequent  adjudi- 
cation in  her  courts  and  had  there  ceased  to  be  a  controverted 
point  before  the  passage  of  the  Carriers  Act  of  1830.  In  this 
country  it  was  at  one  time  a  subject  of  nmch  controversy 
whether  any  such  limitation  could  be  permitted.  It  was  in- 
sisted that  exercising  a  public  employment  the  carrier  owed 
duties  at  common  law  from  which  public  policy  demanded  that 
he  should  not  be  discharged  even  by  express  agreement  with 
the  owner  of  the  goods  delivered  to  him  for  transporta- 
tion      iSTor  do  we  perceive  any  good  reason  or  principle 

why  parties  should  not  be  permitted  to  contract  for  a  limited 
responsibility.  The  transaction  concerns  them  only.  It  in- 
volves simply  rights  of  property  and  the  public  can  have  no 
interest  in  requiring  the  responsibility  of  insurance  to  accom- 
pany the  service  of  transportation  in  the  face  of  a  special  agree- 
ment for  its  relinquishment.  By  the  special  agreement  tbe 
carrier  becomes  with  reference  to  the  particular  transaction  an 
ordinary  bailee  and  private  carrier  for  hire.  The  law  prescribes 
the  duties  and  responsibilities  of  the  common  carrier.  He  exer- 
cises in  one  sense  a  public  employment  and  has  duties  to  the  pub- 
lic to  perform.     Though  he  may  limit  his  services  to  the  car- 

'  Railroad  Co.  v.  Pratt,  22  Wallace,  sylvania  Railroad  Co.,  ib.  333  ;  Scruggs 
134.  Opinion  of  Mr.  Justice  Hunt.  r.  B.  &  O.  R.  R.  Co.,  5  ib.  590;  The 
See  also  Railroad  Co.  v.  Manufactur-  Steamer  City  of  Norwich,  3  Benedict, 
ing  Co.,  16  AVall.  318  ;  Bank  of  Ken-  575  ;  Hunnewell  v.  Taber,  2  Sprague, 
tucky  r.  Adams  Ex.  Co.,  3  Otto,  174;  1;  The  Pacific,  1  Deady,  17;  The 
York  Co.  r.  Central  Railway,  3  Wall.  May  Queen,  1  Newb.  465 ;  The  New 
107;  Railroad  Co.  v.  Lockwood,  17  World  v.  King,  16  How.  469;  The 
ib.  357  ;  Muser  y.  Holland,  UBlatchf.  Rockett,  1  Biss.  354  ;  The  David  & 
41 2  ;  Express  Co.  v.  Kountze,  8  Wall.  Caroline,  5  Blatchf.  266  ;  The  Bellona, 
342;  New  Jersey  Steam  Nav.  Co.  v.  4  Ben.  503;  Nelson  r.  National  Steam- 
Merchants'  Bank,  6  Howard,  344;  ship  Co.,  7  ib.  340;  The  Invincible, 
Express  Co.  v.  Caldwell,  21  Wallace,  1  Lowell,  225  ;  The  Delhi,  4  Ben. 
267  ;  Earnest  v.  The  Express  Co.,   1  345. 

Woods,  573  ;  The  War  Eagle,  6  Bis-  «  3  Wallace,  1Q7.     See  also  Liver- 
sell,  364;  Lord  v.  G.  N.  &  P.  S.  Co.,  pool  Steam  Co.  v.  Phenix  Ins.  Co., 
4  Sawyer,  292  ;   Ormsby  v.  U.  P.  Ry.  129  U.  S.  397. 
Co.,  2  McCrary,  48;    Hart  v.   Penn- 
82 


CHAP.  VIII.]  CARRIERS   TO    LIMIT    LIABILITY.  [§  104. 

riage  of  particular  kinds  of  goods  and  may  prescribe  regulations 
to  protect  himself  against  imposition  and  fraud  and  lix  a  rate 
of  charges  proportionate  to  the  magnitude  of  the  risks  he  may 
have  to'encounter,  he  can  make  no  discrimination  between  per- 
sons or  vary  his  charges  from  their  condition  or  character.  He 
is  bound  to  accept  all  goods  offered  within  the  course  of  his 
employment  and  is  liable  to  an  action  in  case  of  refusal.  He  is 
chargeable  for  all  losses,  except  such  as  may  be  occasioned  by 
the  act  of  God  or  the  public  enemy.  He  insures  against  all 
accidents  which  result  from  human  agency,  although  occurring 
without  any  fault  or  neglect  on  his  part  and  he  cannot  by  any 
mere  act  of  his  own  avoid  the  responsibility  which  the  law 
thus  imposes.  He  cannot  screen  himself  from  liability  by  any 
general  or  special  notice,  nor  can  he  coerce  the  owner  to  yield 
assent  to  a  limitation  of  responsibility  by  making  exorbitant 
charges  when  such  assent  is  refused.  The  owner  of  the  goods 
may  rely  upon  this  responsibility  imposed  by  common  law" 
which  can  only  be  restricted  and  qualified  when  he  expressly 
stipulates  for  the  restriction  and  qualification.  But  when  such 
stipulation  is  made  and  it  does  not  cover  losses  from  negligence 
or  misconduct,  we  can  perceive  no  just  reason  for  refusing  its 
recognition  and  enforcement." 

§  104.  In  Express  Company  v.  Caldwell,^  Mr.  Justice  Strong 
delivering  the  opinion  of  the  court  said:  "Notwithstanding 
the  great  rigor  with  which  courts  of  law  have  always  enforced 
the  obligations  assumed  by  common  carriers  and  notwithstand- 
ing the  reluctance  with  which  modifications  of  that  responsi- 
bility imposed  upon  them  by  public  policy  have  been  allowed, 
it  is  undoubtedly  true  that  special  contracts  with  their  em- 
ployers limiting  their  liability  are  recognized  as  valid,  if,  in 
the  judgments  of  the  court  they  are  just  and  reasonable,  if  they 
are  not  in  conflict  with  sound  legal  policy.  The  contract  of  a 
common  carrier  ordinarily  is  an  assumption  by  him  of  the 
exact  duty  which  the  law  affixes  to  the  relation  into  which  he 
enters  when  he  undertakes  to  cany.  That  relation  the  law 
regards  as  substantially  one  of  insurance  against  all  loss  or 
damage  except  such  as  results  from  what  is  denominated  the 

«  21  Wallace.  2C4. 

83 


§  104.]  BILLS   OF   LADING.  [CHAP.  VIII. 

act  of  God  or  of  the  public  enemy.     But  the  severe  operation 
of  such  a  rule  in  some  cases  has  led  to  a  relaxation  of  its  strin- 
gency when   the   consignor  and    the   carrier   agree  to  such  a 
relaxation.     All  the  modern  authorities  concur  in  holding  that 
to  a  certain  extent,  the  extreme  liability  exacted  by  the  common 
law  originally,  may  be  limited  by  express  contract.     The  diffi- 
culty is  in  determining  to  what  extent  and  here  the  authorities 
differ.     Certainly  it  ought  not  to  be  admitted  that  a  common 
carrier  can  be  relieved  from  the  full  measure  of  that  responsi- 
bility which  ordinarily  attends  his  occupation  without  a  clear 
and  express  stipulation  to  that  effect  obtained  by  him  from  his 
emplover.     And  even  when  such  a  stipulation  has  been  obtained 
the  court  must  be  able  to  see  that  it  is  not  unreasonable.     Com- 
mon carriers  do  not  deal  with  their  employers  on  equal  terras. 
There  is,  in  a  very  important  sense,  a  necessity  for  their  employ- 
ment.    In  many  cases  they  are  corporations  chartered  for  the 
•  promotion  of  the  public  convenience.     They  have  possession 
of  the  railroads,  canals  and  means  of  transportation  on  the 
rivers.     They  can  and  they  do  carry  at  much  cheaper  rates  than 
those  w^hich  private  carriers  must  of  necessity  demand.     They 
have  on  all  important  routes  supplanted  private  carriers.     In 
fact  they  are  without  competition,  except  as  between  themselves 
and  that  they  are  thus,  is  in  most  cases  the  consequence  of  ad- 
vantages obtained  from  the  public.     It  is,  therefore,  just  that 
they  are  not  allowed  to  take  advantage  of  their,  powers  and  of 
the  necessities  of  the  public,  to  exact  exemptions  from  that 
measure   of  duty  which   public   policy  demands.      But   that 
which  was  public  policy  a  hundred  years  ago  has  undergone 
changes   in  the   progress  of  material  and  social   civilization. 
There  is  less  danger  than  there  was  of  collusion  with  highway- 
men.    Intelligence  is  more  rapidly  diffused.     It  is  more  easy 
to  trace  a  consignment  than  it  was.     It  is  more  difficult  to 
conceal  a  fraud.     And  what  is  of  equal  importance  the  business 
of  common  carriers   has  been  immensely  increased   and  sub- 
divided.     The  carrier  who  receives  goods  is  very  often  not 
the  one  who  is  expected  to  deliver  them  to  the  ultimate  con- 
signees.    He  is  but  one  link  of  a  chain.     Thus  his  hazard  is 
greatly  increased.    His  employers  demand  that  he  shall  be  held 
84 


CHAP.  VIII.]  CARRIERS    TO    LIMIT    LIABILITY.  [§  106. 

responsible,  not  merely  for  bis  own  acts  and  omissions  and  those 
of  his  agents,  but  for  those  of  other  carriers  whom  he  neces- 
sarily employs  for  completing  the  transit  of  the  goods.  Hence, 
as  we  have  said,  it  is  now  the  settled  law  that  the  responsi- 
bility of  a  common  carrier  may  be  limited  by  an  express  agree- 
ment made  with  his  employer  at  the  time  of  his  accepting 
goods  for  transportation,  provided  the  limitation  be  such  as  the 
law  can  recognize  as  reasonable  and  not  inconsistent  with  sound 
public  policy." 

§  105.  In  Alabama  carriers  may  exempt  themselves  by  con- 
tract from  liability,  except  for  their  own  negligence.  In  South 
and  IS'orth  Alabama  Railroad  Co.  v.  Wilson,^  it  was  held  that 
when  loss  or  damage  to  goods  occurs  while  they  are  in  the  cus- 
tody of  the  carrier,  though  carried  at  "  owner's  risk,"  the  car- 
rier must  make  at  least  a  ^rma/acfe  showing  that  it  was  not 
caused  by  his  negligence. 

Special  contracts  made  by  a  common  carrier  with  shippers  of 
cattle,  restricting  and  avoiding  their  liability  for  the  unusual 
risks  peculiar  to  the  transportation  of  such  freight,  are  main- 
tained and  upheld  by  the  courts,  when  the  limitations  are  just 
and  reasonable  and  do  not  exempt  the  carriers  from  liability 
for  any  loss  or  injury  caused  by  their  ow^n  act  and  negligence.^ 

§  106.  In  Arkansas  it  has  been  held  in  a  recent  case  that  a 
common  carrier  may  contract  for  exemption  and  for  unavoid- 
able accidents,  but  not  for  exemption  from  liability  for  losses 

1  78  Ala.  587;  see  also  East  T.,  Va.,  Jarboe,   41   ib.    644;     Hibler   v.  Mc- 

and  Georgia  R.   Co.  v.  Johnston,   75  Cartney,  31  ib.  501  ;  Jones  v.  Pitcher, 

Ala.  59G  ;   Alabama  Gt.  South.  R.  R.  '  3   St.  &  P.  135  ;  McClure  v.  Cox,  32 

Co.  V.  Little,  71  ib.   611  ;  L.   &  N.  R.  Ala.    617;     Sampson    v.    Gazzamy   6 

R.  Co.  v.  Oden,  80  ib.  38  ;   L.  &  N.  R.  Port.  123;    Ezell  v.  Miller,  ib.  307; 

R.  Co.  V.  Sherrod,  84  ib.  178  ;  Steele  Ezell  v.  English,  ib.  311  ;  Wayland  v. 

v.Townsend,  37  ib.  247;  Southern  Ex-  Mosejy,  5  Ala.   430;   Cent.   R.,   etc., 

press    Co.   v.   Caperton,    44   ib.    101;  Co.   v.   Smitha,  85  ib.  47;  West.  R. 

Southern  Express  Co.  v.  Crook,  44  ib.  Co.  v.  Little,  86  ib.  159. 
468;   Southern  Express  Co.  v.  Arm-         ^  East  T.,  Va.,  and  Georgia  R.  Co. 

stead,  50  ib.  350 ;  Grey's  Ex'r  v.  Mo-  v.  Johnston,    75    Ala.  596  ;    Alabama 

bile,  T.  Co.,  55  ib.  387*;  S.  &  N.  A.  G.  S.  R.  Co.  v.  Thomas  Sons,  83  ib 

R.    R.   Co.    V.   Henlein,   52  ib.  606 ;  343  ;    Central  R.   &  Banking    Co.   v. 

ib.  56  ib.  3G8  ;  M.  &  O.  R.  R.  Co.  v.  Smith  &  Chastain,  85  ib.  47. 

85 


§  111.]  BILLS   OF   LADIXG.  [CHAP.  VIII. 

occurring  from  his  and  his  servant's  negligence,  or  for  any  other 
exemption  not  just  and  reasonable  in  the  eyes  of  the  law.^ 

g  107.  In  California,  in  Hooper  v.  Wells^  (the  only  case  bear- 
ing upon  the  question),  the  right  of  the  carrier  to  contract  for 
a  limited  liability  was  admitted,  but  the  court  declined  "to 
determine  the  more  difficult  question  in  the  present  state  of  the 
authorities,  as  to  the  power  of  common  carriers  by  special  con- 
tract to  exonerate  themselves  from  liabilities  arising  from  th^ 
negligence  of  those  employed  by  them  in  their  business  of 
carriers." 

§  108.  In  Colorado,  while  a  carrier  may  by  special  contract 
"excuse  himself  for  accidental  losses,  he  will,  nevertheless,  con- 
tinue responsible  for  all  damages  occasioned  by  negligence  or 
misfeasance  in  him  or  his  servants."^ 

§  109.  In  Connecticut  a  carrier  may  by  contract  limit  his 
liability,  but  cannot  discharge  himself  from  the  consequences 
of  his  negligence,*  nor  can  he  limit  his  liability  by  a  notice  to 
which  no  assent  has  been  given. ** 

§  110.  In  Dakota  the  code,  section  1263,  provides  that  a  con- 
signor, by  accepting  a  written  contract  for  carriage,  with  know- 
ledge of  its  terms,  assents  to  the  rate  of  hire  and  the  time, 
place  and  manner  of  delivery  therein  stated,  but  that  his  assent 
to  any  other  modifications  of  the  carrier's  obligations  contained 
in  such  instrument  can  only  be  manifested  by  his  signature 
thereto. 

§  111.  In  Delaware  and  Florida  there  is  apparently  no  ad- 
judication of  the  question  as  to  the  carrier's  right  to  limit 
his  liability.® 

'  L.   R.  M.  R.  &  T.  Co.  V.  Talbot  St'm  Co.,  43  ib.  333;   also  reported 

47  Ark.  97;   St.  L.  I.  M.  &  S.  R'y  o.  3  Law  &  Eq.    Reporter,    515;    Lau- 

Lesser,  46  ib.  236  ;  Little  Rock,  etc.,  rence  v.   N.  P.   &  B.  R.  R.  Co.,  36 

R'y  V.  Daniels,  49  ib.  352.            '  Conn.  C3  ;   Derwort  v.  Loomer,  21  ib. 

2    27    California,    11.     Opinion    by  245;   Hale  v.   N.  J.   St'm  Nav.  Co., 

Sawyer,  J.  15  ib.  539. 

»  Merchant's  Dispatch,  etc.,  Co.  v.  ^  Peck  v.  AVeeks,  34  Conn.  145. 

Cornforth,    3    Col.    280  ;    opinion   by  «  The  rule  of  the  Federal    Courts 

Thacher,  C.  J. ;  Western  Union  Tel.  would  probably  be  followed.     Flinn  w. 

Co.  ?'.  Graham,  1  Col.  230.  Phila.  etc.  R.  R.  Co.,  1  Houston,  469; 

*  Welch  V.  B.  &  A.  R.  R.  Co.,  41  Bennett  i'.  Filyaw,  1  Fla.  403;  Brock 

Conn.  333  ;    Camp  v.   Hartford,  etc.,  v.  Gale,  14  ib.  523. 
86 


CHAP.  VIII.]  CARRIERS   TO   LIMIT   LIABILITY.  [§  113. 

§  112.  In  Georgia  it  is  required  Jby  statute  that  the  express 
assent  of  the  owner  be  obtained  to  any  contract  limiting  the 
liability  of  a  carrier  and  such  assent  will  not  be  presumed  from 
the  mere  acceptance  of  a  receipt  containing  the  condition  of 
limitation  except  as  to  a  condition  limiting  the  amount  of 
liability  to  a  fixed  sum  unless  a  greater  sum  should  be  specified 
in  the  receipt.^  Where  the  owiier  of  goods  fills  up  a  receipt  for 
them  which  is  signed  by  the  carrier  and  returned  to  him  con- 
taining a  printed  clause  limiting  the  liability  of  the  carrier,  he 
knowing  the  terms  of  the  clause,  this  is  an  express  contract 
under  the  statute.^ 

The  express  contract  required  by  the  statute  may  be  made 
by  parol  and  parol  evidence  is  admissible  to  show  such  a 
contract  although  a  receipt  be  given  by  a  clerk  of  the  carrier 
containing  no  restrictive  clause.^  A  general  stipulation  or  notice 
in  a  bill  of  lading  is  not  sufficient  to  limit  a  carrier's  liability. 
An  express  contract  is  necessary.^  This,  however,  will  not 
relieve  from  the  consequences  of  negligence.  Such  a  contract 
may  be  incorporated  into  the  bill,  if  it  be  signed  by  both  par- 
ties.^ A  common  carrier  of  live  stock  in  Greorgia  may  limit 
his  liability  by  special  contract,  otherwise  he  is  liable  as  in  case 
of  other  property  except  for  the  inherent  quality  and  natural 
actions  of  the  animals.® 

The  right  to  limit  liability  extends  to  all  damage  discon- 
nected and  apart  from  the  conduct  or  running  of  the  trains.^ 

§  113.  In  Illinois,  carriers  may  limit  their  liability  by  express 
contract,  but  not  for  losses  caused  by  their  own  or  their  servant's 
negligence  or  wilful  misconduct, — such  stipulation  being  against 
public  policy.^ 

'   Southern  Express  Co.  v.  Newby,         *  Ga.   R.   R.   Co.  i\   Gann,    68    ib. 

36  Ga.  635 ;   Mosher  v.  Southern  Ex.  350. 

Co.,  38  ib.  37  ;  P2ast  Tenn.  Va.  &  Ga.         s  game  v.  Spears,  66  ib.  485. 
R.  R.  Co.  V.  Wright,  76  ib.  532.  «  Ga.   R.   R.  Co.   v.  Spears,   66  ib. 

2  WaUace  v.  Mathews,  39  ib.  617;  485. 

WaUace  v.  Sanders,  42  ib.  486.  ''  Same  v.  Beatie,  66  ib.  438. 

3  Purcell  V.  Southern  Ex.  Co.,  34  »  JU.  Cent.  R.  R.  Co.  v.  Adams, 
ib.  315;  Southern  Ex.  Co.  v.  Barnes,  42  111.  474;  111.  Cent.  R.  R.  Co.  v. 
36  ib.  532;  Southern  Ex.  Co.  v.  Pur-  Morrison,  19  ib.  136  ;  111.  Cent.  R. 
cell,  37  ib.  103.  R.   Co.  v.   Smyser,  38  ib.  354;   Erie 

87 


§  114.]  BILLS   OF   LADING.  [CHAP.  VIII. 

A  common  carrier  in  Illinois  may  qualify  bis  liability  by 
general  notice  to  all  who  may  employ  him,  of  any  reasonable 
requisition  to  be  observed  on  their  part  in  regard  to  the  manner 
of  delivery  and  entry  of  parcels  and  such  matters,  but  cannot 
avoid  his  liability  as  an  insurer  of  goods  entrusted  to  him 
during  their  conveyance,  by  any  such  notice.^  Where  there  is 
a  stipulation  of  liability  only  for  gross  negligence  and  assented  to 
by  the  shipper,  still  the  carrier  will  be  bound  to  reasonable  care.^ 

A  general  notice  by  advertisement  or  by  conditions  printed 
on  the  back  of  a  bill  of  lading,  receipt,  ticket,  or  other  voucher 
will  not  do.  The  carrier  cannot  limit  his  liability  by  his  own 
act  alone.3  Conditions  inserted  in  a  receipt  or  bill  of  lading  and 
assented  to  by  the  shipper  will  bind  the  latter,— a  contract 
havino;  been  thus  made  in  the  terms  of  the  receipt  or  bill.* 

In  a  Federal  case^  where  the  Illinois  law  came  under  con- 
sideration, the  court  said,  "  I  do  not  think  that  the  statute  of 
Illinois  intended  that  a  common  barrier  should  be  prevented 
from  limiting  'its  liability  where  it  asks  for  the  value  of  a 
commodity  whose  transportation  it  undertakes  and  the  infor- 
mation is  withheld." 

§  114.  A  carrier  may,  in  Indiana,  limit  his  liability  by 
special  contract,  but  he  may  not  contract  against  negligence. 
The  distinction  of  degrees  of  negligence,  slight,  ordinary  and 
gross,  is  not  well  founded.  Public  policy  will  not  allow  a  car- 
rier to  stipulate  for  any  degree,  however  slight,  any  more  than 

E.    R.    Co.    V.   Wilcox,   84    ib.    239;  v.  Frankenberg,   54  ib.   88;   Western 

Adams  Ex.   Co.   v.  Stettaners,  61   ib.  Trans.   Co.   v.  Newhall,   24    ib.  466 

184;    Boscowitz    v.   Adams  Ex.   Co.,  Baker  v.  Michigan,  etc.,  R.  R.   Co. 

93  ib.  523.  42  ib.   73  ;   Field  v.  Chicago,  etc..,  E 

1  Western  Trans.  Co.  v.  Newhall,  R.  Co.,  71  ib.  458  ;  111.  Cent.  R.  R 
24  111.  466.  Co.  V.  Morrison,  19  ib.  136  ;   Chicago 

2  Adams  Ex.  Co.  v.  Stettaners,  61  etc.,  R.  R.  Co.  v.  Montfort,  60  ib 
jll.  1^4.  175  ;  111.  Cent.  R.  R.  Co.  v.  Smyser 

3  Western  Trans.   Co.  v.  Newhall,  38  ib.   354  ;  111.  Cent.   R.   R.   Co.   v 
24  111.466;   111.   Cent.   R.   R.  Co.   v.  Read,     37     ib.    484;     Boscowitz    v 
Frankenberg,   54  ib.   88;    Merchant's:  Adams  Ex.  Co.,  93  ib.  523  ;  Merchant's 
Desp.  Trans.   Co.  v.  Theilbar,   86  ib.  Despatch    Trans.    Co.    v.   Leyson,   89 
71_  ib.  43;    Merchant's  Despatch  Trans. 

*  Anchor  Line  v.  Dater,  68  111.  369  ;     Co.  v.  Joesting,  ib.  152. 
Merchant's   Despatch   Trans.    Co.    v.         ^  Mather  v.   American    Ex.   Co.,   9 
Theilbar,  86  ib.  71;  111.  Cent.  R.  R.  Co.     Bissell,  293. 

88 


CHAP.  VIII.]  CARRIERS   TO   LIMIT   LIABILITY.  [§  H^. 

for  cross  negligence.     The  carrier  is  responsible  when  any  neg- 
"ence  of  himself  or  his  servants  contributed  in  any  degree  to 
the  b!s  of  property  being  transported.^     He  cannot  restnc    h.s 
Lb  U^'  by  no'tice!^    Th^  Supreme  Court  of  Indiana  sa.d    .n 
1 867  that  they  were  not  prepared  to  hold  that  earners  could 
fn  t'  thet  tlility  bv  a  us'age  or  custom  of  their  own  creation.a 
1  115    in  Iowa,  it  "is  provided  by  statute  that  "  m  the  trans- 
portation of  persons  or  property  by  any  railroad  oro^^ 
mMV  or  by  any  person  or  firm  engaged  m  the  busme..  ot  trans 
portation  of  persons  or  property,  no  contract,  receipt,  rule,  or 
regulation  shall  exempt  such  railroad  or  other  company,  person 
or"tirm  from  the  full  liabilities  of  a  common  earner,  which    n 
the  absence  of  any  contract,  receipt,  rule,  or  regulation  would 
exist  with  respect  to  such  persons  or  property.      _ 

This  act  does  not  affect  contracts  for  the  carriage  of  goods 
beyond  the  carrier's  own  line.«  It  applies  to  a  contract  made 
in  Iowa,  but  to  be.  performed  in  another  state  where  no  such 
legislation  exists.  A  contract  void  or  illegal  where  it  is  made 
issoeverywhere.«.  It  is  not  directed  simply  against  contracts 
without  consideration,  but  declares  that  all  contracts  limiting 
the  carrier's  liability  are  inoperative.^  It  includes  contracts  for 
the  carriage  of  live  stock.^ 

By  the  statutes  of  Iowa,  it  is  further  provided  that  "eveiy 
railroad  company  shall  be  liable  for  all  damages  sustained  by 
any  person,  including  employes  of  the  company,  m  consequence 

•  U    S.   &  N.  I.  R.  Co.  ..  Heaton,         ^  Laws   of   1866,    c     113,   p.    121. 

.-,1      •       i.       T?    f^r.  Tlif>  net  lias  been  applied  in  the  lol- 

37   Ind.  448;    St.  Louis,  etc.,  R.  to.  Ihe  act  nab  0"="     PI  tj     r    xj 

V     Smuck,   49    ib.    302;    Ohio,    etc.,  lowing  cases :    McCune   v.   B.    C.  K. 

K.  clVselby,   47  ib.'  471;   U.   S.  ^  N.  R.  Co.,  52  Iowa   600  ;   Rose  .. 

Ex.  Co...  Harris,  51  ib.l27;  Adams  Des   Moines  Valley   R.    Co.,    39    ib. 

Ex.  Co.  «.  Reagan,  29  ib.  21;  Indi-  246.  ^u    n     .    n    Pn     -^fi 

anapolis,  etc.,  r!  Cq.  ..  Allen,  31  lb.         «  Mulligan  ..  111.  Cent.  R.  Co.,  36 

394  •  Wri<Tht  V.  GafF,  6  ib.  416  ;  Thayer  ib.  181. 
..  St.  Louis,  etc.,  R.  Co.,  22  ib.  26  ;         «  Mc4)aniel  ..  Chicago,  etc.,  R.  Co., 

Adams  Ex.   Co.   ..   Fendrick,  38  ib.     24  ib.  412.       ^     ^    ^  „     ^    ^^     ,„ 
^_,^  7  Brush  V.   S.  A.  &  D.  R.  Co.,  43 

2  Indianapolis,  etc.,  R.  Co.  v.  Cox,     ib.  554.  ,,     ,    t^    ^t    t?     P. 

29  Ind.  360;  E.  &  C.  R.  R.  Co.  ..        «  McCoy  v    K.  &  D.  f\''^^ 

Youn..,  28  ib.  516.  44  ib.  424 ;   German  v.  C.  &  N.  W.  R. 


E.   &  C.  R.  R.   Co.  V.  Young,  28     Co.,  38  ib.  127. 


ib.   516. 


89 


§  118.]  BILLS    OF   LADING.  [CHAP.  YIIl. 

of  any  neglect  of  the  agents,  or  by  any  mismanagement  of  the 
engineers  or  other  employes  of  the  corporation,  to  any  person 
sustaining  such  damage,  all  contracts  to  the  contrary  notwith- 
standing."^ 

§  116.  The  rule  in  Kansas  is  that  a  carrier  may  relieve  him- 
self from  his  common  law  liability  by  special  contract,  but  not 
from  loss  due  to  his  negligence.^ 

§  117.  A  common  carrier  in  Kentucky  may  limit  his  liability 
by  a  special  contract,  but  may  not  thus  escape  liability  for 
nesflio'ence.^  The  common  law  liability  of  a  carrier  does  not 
apply  to  the  transportation  of  live  stock,  but  a  higli  degree  of 
diligence  is  required.*  Conditions  different  from  those  pre- 
scribed by  law,  will  not  be  implied  from  publication  of  a  notice, 
nor  otherwise  than  from  an  express  contract.' 

§  118.  In  Louisiana  it  was  in  1883  held  to  be  settled  law 
that  a  carrier  may  limit  his  obligation  by  express  contract 
either  parol  or  written,  but  nothwithstanding  a  special  agree- 
ment he  is  still  liable  for  the  carelessness  or  unskilfulnessof  his 
servants,  not  only  gross  but  ordinary.^  In  this  State  a  carrier 
is  responsible  for  loss  or  damage  resulting  to  the  cargo  confided 
to  him  from  neglect,  imprudence  or  want  of  skill,  notwithstand- 
ing a  stipulation  to  the  contrary  in  the  bill  of  lading.''  In  1876 
it  was  said:  "All  contracts  may  be  made  except  those  repro- 
bated by  law  or  public  policy  and  a  contract  by  which  one 
stipulates  for   exemption  from   responsibility  for  losses  occa- 

'  Laws  1866,  c.  113,  p.   121.  Ex.  Co.  v.  Nock,  2  Duv.   562;  Reno 

2  K.  C.  St.  J.   &  C.  B.   R.   R.  Co.     V.  Hogan,  12  B.  iAIonroe,  63. 

V.  Simpson,  30  Kan.  645;   K.  R.  R.Co.  ■»    L.  C.  &  L.  R.  R.  Co.   v.  Hedger, 

V.  Reynolds,  17  ib.  251  ;  M.  V.  R.  R.  9  Bush,  645.     • 

Co.  y.  Caldwell,  8  ib.   244;    Kallman  *  Overdotf  v.    Adams    Ex.    Co.,    3 

V.  U.  S.  Ex.   Co.,  3  ib.  205;  Goggin  Bush,  194. 

V.  K.  R.  R.  Co.,  12  ib.  416;   K.  P.  ^  Tardos  v.  C,  St.  L.  &  N.  O.  R. 

R.  R.  Co.  V.  Nichols,  9  ib.  235  ;    St.  R.  Co.,  35  La.  Ann.  Rep.  15  ;  Roberts 

L.   K.  C.  &  N.  R.   R.  Co.  V.  .Piper,  v.   Riley,   15   ib.   103  ;    New   Orleans 

13  ib.  505;  K.  P.  R.  R.  Co.  v.  Rey-  Mut.  Ins.  Co.  v.  New  Orleans  R.   R. 

nolds,  8  ib.  623.  Co.,  20  ib.  302  ;   Simon  v.  The  Fung 

3  Rhodes  v.  L.  &  N.  R.  R.  Co.,  Shuey,  21  ib.  363;  Baldwin  v.  Col- 
9  Bush  (Ky.),   688  ;  L.  C.  &  L.   R.  lins,  9  Robinson,  468. 

R.   Co.  V.  Hedger,    ib.    645 ;   Adams        ^  Newman  v.  Snowker,  25  La.  Ann. 
Ex.  Co.  I'.    Guthrie,   ib.   78  ;   Adams     Rep.  303. 
Ex.  Co.  V.  Loeb,   7  ib.  499  ;  Adams 

90 


CHAP.  VIIT.]  CARRIERS    TO   LIMIT    LIABILITY.  [§  121. 

sioned  to  another  from  the  negligence  of  his  agents  or  servants 
is  not  against  public  policy  or  forbidden  by  law,  but  if  the 
losses  resulted  from  the  fraudulent,  wilfuWr  reckless  miscon- 
duct of  the  agent  or  employe,  it  would  be.''^ 

A  carrier  may  limit  his  responsibility  by  a  special  notice  of 
the  extent  of  liability  he  intends  to  assume.^ 

§  119.  In  Maine  a  carrier  may  by  contract  or  special  notice 
brought  home  to  and  assented  to  by  the  owner,  restrict  its 
common  law  liability  against  accidental  loss  or  injury,  but  not 
against  negligence.^ 

§  120.  In  Maryland  a  common  carrier  may  by  express  con- 
tract limit  his  liability.  Where  indemnity  from  liability  for 
loss  is  claimed  by  virtue  of  such  a  contract  the  burden  of  proof 
to  establish  it  is  on  the  carrier.  It  must  be  shown  that  the 
shipper  had  notice  or  actual  knowledge  of  the  terms  of  such  a 
contract  and  that  they  were  assented  to  by  him.  If  no  release 
be  signed,  although  the  special  rates  are  accepted,  the  contract 
is  not  consummated  between  the  parties."  The  agreement  ought 
to  be  in  clear  and  distinct  terms  and  the  limitations  must  be 
reasonable  and  just.^ 

Contracts  with  a  restricted  liability  are  specially  authorized 
for  the  transportation  of  live  stock  by  the  act  of  1830,  ch.  117.« 
§  121.  It  is  well  settled  iii  Massachusetts  that  common  car- 
riers may  by  special  contract  limit  their  liability,  except  in  case 
of  negligence  or  misconduct.^  It  is  equally  well  settled  that 
a  common  carrier  may  limit  his  responsibility  for  property 
intrusted  to  him,  by  a  notice  containing  reasonable  and  suitable 

«  Higgins  V.  New  Orleans,  etc  ,  R.  25  ib.    328;   Bankurd  v.  B.  &  O.  R. 

R.  Co.r28  La.  Ann.  Rep.  133.  Co.,  34  ib.  197. 

2  Thomas    v.   Ship  Morning  Glory,  '  McCoy  v.  Erie,  etc.,  Transporta- 
13  La.  Ann.  Rep.  269.  tion  Co.,  42  Md.  498. 

3  Little  V.  Boston  &  Maine  R.  R.  «  Bankard  v.  B.  &  O.   R.  R-   Co., 
Co.,   66    Me.    239;  Willis   v.    Grand  34  Md.  197. 

Trunk  R.  R.  Co.,   62  ib.   488;   Sager  '  Hoadley  v.   N.    Trans.    Co.,    115 

y     P    R    R    Co.,  31  ib.  228;  Bean  Mass.  304;   School  Dist.  v.  B.   H.  & 

V    Green,   12  ib.   422;    Fillebrown  v.  E.  R.  R.  Co.,  102  ib.  552;   Pember- 

Grand  Trunk  R.  R.  Co.,  55  ib.  462.  ton  v.  N.  Y.   C.  R.  R.   Co.,  104  ib. 

*  B.  &  O.   R.  Co.  V.  Brady,  32  M.  144;    Grace  v.  Adams,   100   ib.   505; 

333  ;  Brehmc  t'.  Adams  Express  Co.,  Squire  v.  N.  Y.  C.  R.  R.  Co.,  98  ib. 

239. 

91 


§  122.]  BILLS   OF   LADING.  [CHAP.  VIII. 

restrictions,  if  brought  home  to  the  owner  of  goods  delivered  for 
transportation  and  assented  to  clearly  and  unequivocally  by  him.^ 

Although  brought  home  to  the  knowledge  of  the  owner  or 
consignor,  the  notice  does  not  operate  to  relieve  the  carrier 
from  liability  for  loss  occasioned  by  causes  other  than  the  act 
of  God  or  the  public  enemy .^  A  carrier  cannot  by  a  general 
notice  exonerate  himself  entirely  from  his  legal  liability,  nor 
limit  it  absolutely  to  a  certain  amount  beyond  which  he  will 
not  be  held  responsible  in  case  of  injury  or  loss.^ 

§  122.  In  1853  the  Supreme  Court  of  Michigan  said  that  the 
charter  of  the  M.  C.  R.  R.  Co.  w-as  in  the  nature  of  a  contract 
with  the  State;  that  the  company  should  become  and  remain  a 
carrier  as  at  common  law  and  its  liability  as  such  became  irrevo- 
cably fixed  and  could  not  be  altered  or  modified  by  any  stipu- 
lation or  contract.*  Three  judges  dissented  from  this  opinion 
and  it  was  overruled  in  1859,  when  the  court  decided  that  a 
corporation  which  is  a  common  carrier  by  its  charter  and 
required  to  transport  merchandise  and  property  without  show- 
ino-  partiality  or  favor  has  the  same  power  to  contract  for  a 
limitation  of  its  liability  as  any  other  carrier  and  that  no 
consideration  of  public  policy  is  contravened  by  the  exercise 
of  such  power.^ 

A  carrier  may  limit  his  liability  by  contract,  but  not  by 
mere  notices  published,  posted,  indorsed  on  a  receipt  or  other- 
wise brought  to  the  knowledge  of  the  consignor.^  It  is  pro- 
vided in  this  State  by  statute  that  no  railroad  company  shall 
be  permitted  to  change  or  limit  its  common  law  liability  as 
a  common  carrier  by  any  contract  or  in  any  other  manner 
except  by  a  written  contract  none  of  which  shall  be  printed, 
which  shall  be  signed  by  the  owner  or  shipper  of  the  goods  to 
be  carried.^ 

•  Buckland  v.  Adams  Ex.  Co.,  97  *  M.    C.    R.    R.    Co.    v.    Ward,  2 

Mass.  124;  Brown  v.  Eastern  R.  R.  Mich.  538. 

Co.,  11  Cushing,  97  ;  Malone  y.  B.  &  *  M.  C.  R.  R.  Co.  v.  Hale,  6  ib.  243. 

W.  R.  R.  Co.,  12  Gray,  388  ;  Gott  v.  «  McMillan  v.  Mich.  Southern,  etc., 

Dinsmore,  111  Mass.  45.  R.  R.  Co.,  16  Mich.  79  ;   Hartness  v. 

2  Perry  v.  Thompson,  98  Mass.  249.  Grt.  Western  R.  R.  Co.,  2  Brown,  80. 

8  Judson  V.  Western  R.   Corp.,   88  '  Mich.    Comp.,  L.    1871,  p.   783, 

Mass.  486.  §  2386. 
92 


CHAP.  VIII.]  CARRIERS   TO    LIMIT    LIABILITY.  [§  127. 

§  123.  In  Minnesota  a  carrier  may  limit  his  liability  by  eon- 
tract,  but  not  for  loss  due  to  his  own  negligence  or  that  of  his 
agents.^ 

§  124.  By  an  Act  of  the  Legislature  of  Mississippi,  passed 
December  9, 1863,  railroad  companies  were  made  responsible  as 
common  carriers  at  common  law,  notwithstanding  any  special 
contract  with  the  shipper  of  goods.^  This  was  subsequently 
(in  1871)  repealed  and  in  1874  it  was  held  that  the  carrier  may 
by  contract,  but  not  by  notice,  provide  for  a  limitation  of,  or 
exemption  from,  liability  for  losses  arising  from  those  accidents 
and  casualties  which  prudence,  skill  and  care  cannot  always 
prevent  or  guard  against.^  Recent  cases  have  confirmed  the 
holding  that  a  common  carrier  in  Mississippi  may  by  special 
contract  stipulate  for  exemption  from  the  liability  imposed  by 
the  common  law,  but  may  not  thus  secure  exemption  from  the 
consequences  of  negligence  or  misconduct.* 

§  125.  In  Missouri  a  common  carrier  may  limit  his  common 
law  liability  by  special  contract,  but  cannot  exempt  himself 
from  liability  for  his  negligence.^  He  "  cannot  vary  his  lia- 
bility by  inserting  conditions  in  his  acceptance  of  goods,  but 
to  have  the  effect  of  exonerating  him,  there  must  be  a  special 
contract  assented  to  by  the  shipper."® 

§  126.  In  IsTebraska  "a  carrier  cannot  limit  his  liability  by 
contract,  so  as  to  cover  his  own  or  his  servant's  negligence."'^ 

§  127.  In  ITew  Hampshire  a  carrier  may  limit  his  liabilty  by 
special  contract,  but  not  by  notice  even  though  brought  home 
to  the  shipper's  knowledge.^ 

1  Shriver  v.  Sioux  City,  etc.,  R.  92  Mo.  343;  Oxley,  St.  L.,  etc.,  R. 
R.  Co.,  24  Minn.  506;  Christenson  R.  Co.,  65  ib.  029;  Rice  v.  K.  P.  R. 
V.  American  Ex.  Co.-,  15  ib.  270;  R.  Co.,  63  ib.  314:  Snider  i-.  Adams 
Jacobus  V.  St.  Paul,  etc.,  R.  R.  Co.,  Express  Co.,  ib.  376  ;  Kirby  v.  Adams 
20  ib.  125.  Express  Co.,  2  Mo.  App.  369  ;  Lupe 

2  M.    &  O,  R.  R.    Co.  V.  Franks,  v.  A.  &  P.  R.  R.  Co.,  2  ib.  77. 

41  Miss.  494.  •  ^  Levering  v.  Union  Trans.  Co.,  42 

3  M.  R.  R.  Co.  V.  Weiner,  49  Miss.     Mo.  88. 

725.  7  Atchison  &  Nebraska  R.  R.  Co. 

*  Chicago,  St.  L.  &  N.  O.  R.  R.     v.  Washburn,  5  Neb.  1 1 7. 
Co.  I'.  Abels,  60  Miss.  1017;  Chicago,         Note. — There  are  no  decisions  on 
St.  L.  &  N.  O.   R.  R.   Co.  V.  Moss, .   the  point  in  Nevada. 
60  ib.  1003.  8  Moses   v.  B.   &  M.    R.   R.    Co., 

6  McFadden  v.  Mo.  Pac.  R'y  Co.,     32  N.  H.  523;  Barter  v.  Wheeler,  49 

93 


§  129.]  BILLS   OF   LADING.  [CHAP.  VIII. 

§  128.  The  statute  of  New  Mexico  (Laws,  1865-66,  226), 
does  not  alter  the  common  law  liability  of  a  carrier,  but  only 
enables  the  carrier  to  diminish  it  by  making  special  con- 
tracts.^ » 

§  129.  In  New  York  common  carriers  may  by  special  con- 
tract exempt  themselves  from  liability  for  loss  due  to  their 
own  or  their  servant's  negligence,^  or  even  their  wilful  or 
criminal  acts.^ 

Where  a  contract  is  relied  on  to  relieve  the  carrier  from  lia- 
bility for  negligence,  it  must  be  so  explicit  as  to  leave  no 
reasonable  doubt  of  its  meaning  and  intent."'  "  When  general 
words  may  operate  without  including  the  negligence  of  the 
carrier  or  his  servants,  it  will  not  be  presumed  that  it  was 
intended  to  include  it.  Every  presumption  is  against  an  inten- 
tion to  contract  for  immunity  for  not  exercising  ordinary  dili- 
gence in  the  transaction  of  any  business  and  hence  the  general 
rule  is  that  contracts  will  not  be  so  construed  unless  expressed 
in  unequivocal  terms."* 

The  common  law  liability  of  common  carriers  cannot  be 
limited  by  a  notice,  even  though  such  notice  be  brought  to 

ib.  9;  Rixford  v.  Smith,  52  ib.  355;  ^  Knell  v.  U.  S.  &  B.  S.  S.  Co.,  1 

Moses  V.  B.  &  M.  R.  R.  Co.,  24  ib.  J.  &  Sp.  423. 

71.  "  Blair  u.  Erie  R.  R.  Co.,  66  N.Y. 

'  Seligman     v.     Armijo,      1     New  313;    Maguire   v.    Dinsmore,    56    ib. 

Mexico,  459.  168  ;   Edsall  v.  C.  &  A.  R.  &  T.  Co., 

2  Mynard  v.   S.  B.  &  N.  Y.  R.  R.  50   ib.    661  ;   Fibel  v.    Livingston,   64 

Co.,  7  Hun,  399;   Mynard  v.  S.  B.  &  Barb.   179;    Belger  v.    Dinsmore,    51 

N.  Y.  R.  Co.,  71  N.  Y.  180 ;  Maguire  N.  Y.  166 ;  French  v.  B.  &  E.  R.  R. 

V.  Dinsmore,  56  N.  Y.   168;   Blair  v.  Co.,  4  Keyes,  ib    108. 

ErieR.  R.  Co.,  66  ib.  313  ;  Westcotty.  ^  Mynard  v.  S.  B.  &  N.  Y.  R.  Co., 

Fargo,  63  Barb.  349  ;  Cragin  w.  N.  Y.  71  N.    Y.   180;   Potter  v.  Sharp,   24 

C.  R.  Co.,  51  N.  Y.   61  ;  Poucher  i;.  Hun,  179;   Holsapple  v.  R.  W.  &  O. 

N.  Y.   C.   R.   Co.,  49  ib.   263;   Guil-  R.  Co.,  86  N.  Y.  275;  Nicholas  v.  N. 

laume   v.    H.   &  A.   Packet   Co.,   42  Y.  C.  &  H.  R.    R.  Co.,  89  ib.  370; 

ib,   212;    Sunderland    v.  Westcott,   2  Wilson  v.  N.  Y.  C.  &  N.  R.   R.  Co., 

Sweeney,   260;    Prentice  v.   Decker,  27  Hun,  149;   Hill  v.  S.  B    &  N.  Y. 

49  Barb.  21  ;  Heineman  v.  G.  T.  R.  R.  R.  Co.,  73  N.  Y.  351  ;  Degitz  v. 

R.  Co.;  31   How.  Pr.  430;   Price  v.  Holland  (N.  Y.  Marine  Ct.),  6  Chic. 

Hartshorn,    44   ib.    655 ;     Spinetti  v.  Leg.  News,  224. 
Atlas  Steamship  Co.,  80  ib.  71. 

94 


CHAP.  VIII.]  CARRIERS    TO    LIMIT    LIABILITY.  [§  131. 

the  knowledge  of  the  persons  whose  jiroperty  they  carry. ^  It 
has  been  held  that  a  common  carrier  cannot  limit  his  liability 
by  a  memorandum  or  note  on  the  card  or  ticket  which  he  de- 
livers on  the  receipt  of  goods  to  be  transported  by  him.  The 
indorsement  on  the  back  of  such  a  card  delivered  to  the  ser- 
vant of  the  shipper  does  not  amount  in  law  to  a  special  con- 
tract, by  which  a  carrier  can  limit  his  liability.^ 

§  130.  In  ^ew  Jersey  the  presumption  that  a  carrier  is  trans- 
porting goods  subject  to  his  common  law  liability  remains  until 
it  is  overcome  by  positive  proof  of  a  special  agreement^  and  in 
1860  it  was  said  that  it  seemed  to  be  well  established  that  special 
contracts  could  be  made  by  carriers,  but  that  the  great  weight 
of  authority  seemed  to  be  that  they  could  not  make  contracts 
to  protect  themselves  in  case  of  their  own  clear  and  palpable 
wrongs,  either  of  omission  or  commission,  and  negligence  is 
such  a  wrong.*  JS'othing  short  of  an  express  stipulation,  by 
parol  or  writing,  should  be  permitted  to  discharge  a  carrier  from 
the  duties  which  the  law  annexes  to  his  employment.  The  ex- 
emptions should  be  specific  and  certain,  leaving  no  room  for 
controversy  between  the  parties.® 

In  the  case  of  Kinney  v.  The  Central  Railroad  Company,  a 
contract  by  a  passenger  that  he  would,  in  consideration  of  free 
passage,  release  the  company  from  liability  for  injury  to  his 
person,  though  caused  by  the  negligence  of  the  company's  ser- 
vants, was  held  binding  and  valid. ^ 

§  131.  It  has  been  decided  in  N'orth  Carolina  that  the  car- 
rier's liability  may  be  limited  by  contract,  except  for  loss  or 
damage  due  to  his  neijliiJ-ence. 

The  limitation  may  also  be  secured  by  special  notice  brought 

'  Westcott  V.  Fargo,  G3  B.irb.  349;  Sweeney,   260;   Nevins   i-.  Bay  State 

Blossom   V.    Dodd,    43    N.   Y.    264;  Stm.  Co.,  4  Bosw.  225  ;  Gould  u.  Hill, 

Dorr  V.  N.  J.   Stm.   Nav.  Co.,  11  ib.  2  Hill,  623. 

485  ;  Slocura  v.  Fairchild,  7  Hill,  292  ;         «  N.  J.  R.  R.  &  Trans.  Co.  v.  Penna. 

HoUister  v.  Nowlen,    19  Wend.   234  ;  R.  R.  Co.,  3  Dutcher,  100. 
Cole  V.  Goodwin,    19  ib.   251;    Clark        *  Ash  more  i>.  Penna,  Steam  Towing 

V.  Faxton,  21  ib.  153;  C.  &  A.  R.  &  Trans.  Co.,  4  ib.  180. 
T.  Co.  V.  Belknap,  ib.  354.  s  The  Pacific,  Deady  (U.  S,  D.  C), 

*  Limberger  v.  Wescott,  49  Barb.  17. 
283;     Sunderland     v.     Westcott,     2         «  34  N.  J.  J.aw,  513;  32  ib.  407. 

95 


§  133.]  BILLS    OF   LADING.  [CHAP.  VIII. 

home  to  the  shipper,  for  loss  of  perishable  or  unusually  valu- 
able articles,  but  cannot  be  secured  by  general  notice.^ 

§  182.  In  Ohio  the  carrier  may  limit  his  common  law  liability 
for  losses  by  a  contract,  either  verbal  or  in  writing,  but  cannot 
exempt  himself  from  liability  for  loss  or  damage  occasioned  by 
his  own  negligence  or  that  of  his  servants.  "In  an  action 
against  him  as  such  carrier  when  he  has  received  and  under- 
taken to  carry  goods,  the  burden  is  upon  him  to  establish  such 
modified  liability  and  to  show  that  the  loss  falls  within  the 
terras  of  the  agreement.^ 

§  133.  In  Pennsylvania  a  carrier  may  by  special  contract 
limit  his  liability  for  loss  or  injury  to  goods  carried  by  him 
as  to  every  cause  of  injury,  save  that  arising  from  his  own 
negligence  or  that  of  his  servants.^  He  may  also  qualify  his 
liability  by  general  notice.  Proof  of  general  notice  must  be 
such  as  amounts  to  actual  notice  or  shown  to  have  been  so  con- 
spicuous, that  the,  party  sought  to  be  affected  by  it  could  not 
have  failed  to  discover  it  without  gross  negligence.  This  quali- 
fication does  not  affect  the  carrier's  liability  for  negligence.* 
In   1848    it  was   said:    "It  has  been  a  subject  of  frequently 

»  Weinberg  v.  A.  &  R.  R.  R.  Co.,  Sharpless,   77  Pa.  St.  516;  American 

91  N.  C.  31  ;  Phifer  v.  C.  C.  R.  R.,  Ex.  Co.  v.   Second  Nat.  Bank,  69  ib. 

89  ib.  311;    Whitehead  v.  W.  &  W.  394;  Colton  ?;.  Cleveland,  etc.,  R.  R. 

R.  R.  Co.,  87  ib.  255;   Cape  Hart  v.  Co.,  67  Pa.   St.  211  ;   Empire  Trans. 

S.  &  R.  R.  R.  Co.,  81  ib.  438;   Lee  Co.  v.  AVamsutta,  etc.,  Co.,  63  ib.  14; 

V.  R.  &  G.  R.  R.  Co.,   72  ib.  236  ;  Pennsylvania  R.  R.  Co.  v.  Butler,  57 

Smith  V.  N.  C.  R.  R.  Co.,  64  ib.  235;  ib.  335;   American  Ex.  Co.  v.  Sands, 

Williams  v.  Branson,  1  Murphey,  417-  55  ib.  140 :  Pennsylvania  R.  R.  Co.  v. 

2  P.  C.  &  St.  L.  R.  R.  Co.  V.  Bar-  Henderson,    51   ib.    315;     Powell   v. 

rett,  36  Ohio  St.  448.    Opinion,  John-  Penna.  R.  R.  Co.,  32  ib.  414 ;   Goldey 

son,  J.      Union  Ex,   Co.  v.  Graham,  r.  Pennsylvania  R.  R.  Co.,  30  ib.  242  ; 

26  ib.  595 ;  Welsh  v.  P.  Ft.  W.  &  C.  Penna.  R.  R.  Co.  v.  McCloskey,  23  ib. 

R.    R.   Co.,    10   ib.    65:    Graham    v.  526;  Bingham  v.  Rogers,  6  Watts  & 

Davis,  4  ib.  362;  Davidson  f.  Graham,  Sergeant,   495;   Attwood  v.  Reliance 

2  ib.  131;  Gaines  y.  Union  Trans.  Co.,  Trans.  Co.,    9  Watts,   87;  P.  R.  R. 

28  ib.  418;    see  also  Railroad   Com-  Co.  v.  Fries,  87  Pa.  St.  234;  Choute- 

pany  v.  Lockwood,  17  Wallace,  357.  aux  v.  Leech,  18  Pa.  St.  224;  Penn- 

JsoTE.— Oregon  is  barren  of  deci-  sylvania  R.  R.  Co.  v.  Rapordon,  119 

sions  upon  the  point.  ib.  577. 

8  Farnham  v.   Camden,  etc.,  R.  R.  *  Verner  v.  Sweitzer,  32  Penna.  St. 

Co.,  55  Pa.  St.  53  ;  Adams  Ex.  Co.  v.  208 ;  Farnham  v.  Camden,  etc.,  R.  R. 

96 


CHAP.  VIII.]  CARRIERS   TO   LIMIT    LIABILITY.  [§  134. 

expressed  regret  by  many  of  our  judges,  that  a  common  carrier 
was  ever  permitted  to  limit  the  responsibility  which  as  a  gen- 
eral rule  binds  him  for  the  absolute  safety  of  the  goods  com- 
mitted to  him.  The  expediency  of  recognizing  in  him  a  right 
to  do  so  by  a  general  notice  ....  has  been  strongly  and  justly 
questioned  and,  in  some  of  our  sister  States,  altogether  denied. 
Were  the  question  an  open  one  in  Pennsylvania  I  should  for 
one,  unhesitatingly  follow  them  in  repudiating  a  principle 
which  places  the  bailor  absolutely  at  the  mercy  of  the  carrier, 
whom  in  a  vast  majority  of  instances  he  cannot  but  choose  to 
employ."'  Though  he  may  limit  his  responsibility  by  a  general 
notice,  yet  the  terms  of  the  notice  must  be  clear  and  explicit 
and  the  persons  with  whom  he  deals  must  be  informed  of  the 
terms  and  the  effect  of  the  notice  which  must  be  printed  in  a 
language  understood  by  them.  Thus,  where  the  notice  was  in 
the  English  language  and  a  passenger  was  a  German  who  did 
not  understand  English,  it  was  held  to  be  incumbent  on  the 
carrier  to  prove  that  the  passenger  had  knowledge  of  the  limi- 
tation.2  In  Forepaugh  v.  Del.,  etc.,  R.  R.  Co.,^  it'" was  held  that 
a  contract  exempting  a  railroad  company  from  liability  for  its 
negligence,  though  contrary  to  public  policy  in  Pennsylvania, 
will,  notwithstanding,  be  enforced  in  the  courts  of  Pennsyl- 
vania  if  it  is  made  and  is  to  be  performed  in  a  State  where 
such  a  contract  is  valid. 

§  134.  In  South  Carolina  a  carrier  may  limit  his  liability  by 
express  contract  but  not  for  negligence.'*  It  would  seem  that 
it  may  also  be  done  by  notice.^ 

Co.,  55  ib.  53;  Bingham  v.  Rogers,  6  bard   v.    Harnden  Ex.  Co.,   10  R.  I. 

Watts  &  Sergeant,  495  ;  Beckman  v.  244. 

Shouse,   5  Rawle,   179;    Whitesell  i'.         "Porter   v.    Southern    Ex.   Co.,    4 

Crane,  8  Watts  &  Sergeant,  369.     See  S.  C.  135  ;  Levy  v.  Southern  Ex.  Co., 

also  RaUroad   Co.    v.    Lockwood,    17  ib.  234  ;  Swindler  v.  Milliard,  2  Rich! 

Wall.  357.  Rep.  286  ;  Baker  v.  Bruison,  9  ib.  201  ; 

1  Laing  v.  Colder,  8  Penna.  St.  479.  Patton  v.  Magrath,  Dudl.  159  ;  Single- 
Opinion  of  Bell,  J.  ton  v.  IliUiard,  1    Strobli.  203  ;   w'all- 

2  Camden,  etc.,  R.  R.  Co.  v.  Bal-  ingford  v.  Columbia,  etc.,  R.  R.  Co., 
dauf,  16  Pa.  St.  67.  26  ib.  258. 

'  6  Pa.  County  Ct.  Rep.  228.  «  Levy    v.    Southern    Ex.    Co.,    4 

Note.— The  question  has  not  arisen    S.  C.  234;  Patton  v.  Magrath,  Dudl. 
in  Rhode  Island.     See  however  Hub-     159. 

7  97 


§  138.]  BILLS    OF   LADING.  [CHAP.  VIII. 

§  135.  A  carrier  may,  in  Tennessee,  restrict  his  liability  by 
contract,  but  cannot  thus  exempt  himself  for  tlie  result  of  neg- 
ligence.i     He  cannot  limit  his  liability  by  general  notice.^ 

§  136.  In  Texas,  by  the  law  of  1863,  carriers  cannot  limit 
their  common  law  liability  by  notice,  special  contract  or  in  any 
other  way  whatsoever.^  By  an  act  passed  in  Texas  in  1860,  it 
is  provided  "that  railroad  companies  and  other  common  carriers 
of  o-oods,  wares  and  merchandise  for  hire  within  this  State,  on 
land  or  in  boats  or  vessels  on  the  waters  entirely  within  the 
body  of  this  State  shall  not  limit  or  restrict  their  liability,  as  it 
exists  at  common  law  by  any  general  or  special  notice,  nor  by 
inserting  exceptions  in  the  bill  of  lading  or  memorandum 
given  upon  the  receipt  of  the  goods  for  transportation  nor  in 
any  other  manner  whatever  and  no  special  agreement,  made  in 
contravention  of  the  foregoing  provisions  of  this  section,  shall 
be  valid."" 

§  137.  The  liability  of  a  carrier  may  be  restricted  in  Vermont 
by  special  contract  and  by  a  general  notice,  if  the  terms  of  the 
notice  are  clearly  proved  to  have  been  assented  to  by  shipper.^ 

§  138.  In  Virginia  a  carrier  may  limit  his  common  law 
liability  either  by  notice  brought  home  to  the  owner  of  the 
goods  or  by  inserting  just  and  reasonable  exemptions  from 
liability  in  the  bill  of  lading  or  other  contract,  but  he  cannot 
exempt  himself  from  liability,  by  express  contract  or  otherwise, 
from  the  consequences  of  his  negligence.^ 

1  Olwell  V.  Adams  Ex.  Co.,  1  Cent.  R.  R.  Co.  v.  Burne,  55  ib.  323  ;  Fow- 
L.  J.  18G  ;  Craig  v.  Childress,  Peck,  ler  v.  Davenport,  21  ib.  626  ;  Austin 
270  ;  Nashville,  etc.,  R.  R.Co.  v.  Jack-  v.  Talk,  20  ib.  164  ;  Cantu  v.  Bennet, 
son,  6  Heisk.  271  ;   Southern  Ex.  Co.  39  ib.  303. 

V.  Womack,    1    ib.    256 ;    East  Ten-  *  Paschal's  Digest,  Dec.  Art.  4253. 

nessee,  etc.,    R.  R.  Co.  v.  Nelson,  1  ^  Farmers',  etc..  Bank  y.  Champlain 

Cold.  272  ;  Dillard  v.  Louisville,  etc.,  Trans.   Co.,  18  Yt.   131  ;   S.  C.  23  ib. 

R.  R.   Co.,    2   Lea,    288;    Smith   v.  186;  Kimball  i;.  Rutland,  etc.,  R.  R. 

Louisville,  etc.,  R.  R.  Co.,  86  Tenn.  Co.,  26  ib.  247  ;  Blumenthal  v.  Brain- 

198;  Glenn  v.  Southern  Ex.  Co.,  86  erd,  38  ib.  402;  Mann  v.  Birchard,  40 

ib'.  594.  ib.  326. 

2  Walker  v.  Skipwith,  Meigs,  502.  ^  Virginia,  etc.,  R.  R.  Co.  v.  Sayers, 
8  Houston,  etc.,  R.R.  Co.  y.  Burke,  26   Grattan,    328;    Wilson   v.    Chesa- 

55   Tex.    323  ;    Gulf,    etc.,    Ry.    Co.     peake,  etc.,  R.  R.  Co.  21  ib.  654. 
V.  Trawick,  68  Tex.  314;  Evansville 
98 


CHAP.  VIII.]  CARRIERS   TO   LIMIT   LIABILITY.  [§  140. 

§  139.  In  1865  in  "West  Virginia  it  was  held  that  "  it  is  com-: 
petent  for  a  common  carrier  to  diminish  and  restrict  his  com- 
mon law  liability  by  special  contract  and  that  he  may  by  ex- 
press stipulations  also  absolve  himself  from  all  liability  result- 
ing from  any  and  every  degree  of  negligence  however  gross  (if 
it  fall  short  of  misfeasance  or  fraud),  provided  the  terms  and 
language  of  the  contract  are  so  clear  and  definite  as  to  leave  no 
doubt  that  such  was  the  understanding  and  intention  of  the 
parties."^ 

In  1878  this  statement  of  the  law  was  materially  modified  in 
the  case  of  Maslin  v.  Baltimore  &  Ohio  Railroad  Company'' 
where,  after  conceding  the  right  of  a  carrier  to  limit  his 
liability  by  special  contract,  it  is  said,  "but  a  common  carrier 
for  hire  by  special  contract,  though  based  on  a  valuable  con- 
sideration, cannot  exempt  himself  from  loss  or  damage  which 
has  in  any  degree  been  caused  by  his  own  negligence  or  that 

of  his  servants Exemptions  from  responsibility  arising 

from  loss  occasioned  in  any  degree  by  the  negligence  of  the 
common  carrier  or  his  servants  are  not  just  and  reasonable." 

§  140.  In  Wisconsin  it  was  held  in  1882  well  settled  that  a 
carrier  of  persons  or  property  cannot  by  any  agreement  however 
plain  and  explicit,  wholly  relieve  himself  from  responding  in 
damages  when  the  injury  is  the  result  of  gross  negligence  or 
fraud.^  It  is  competent  for  a  common  carrier  by  express  con- 
tract to  limit  his  liability  in  all  respects  with  reference  to  the 
transportation  of  live  stock.*  In  1865  a  carrier's  right  to  limit 
his  liability  to  his  own  line  was  declared,  but  the  right  to  limit 
his  liability  upon  his  own  line  was  left  undetermined.^  In  1866 
it  was  held  that  an  express  company  might  lawfully  limit  its 
liability  as  insurer  by  contract,  as  to  losses  arising  through  the 
default  or  negligence  of  any  other  person,  corporation  or  asso- 

>  B.  &  O.  R.  R.  Co.  V.  Rathbone,  »  Black  v.  Goodrich  Trans.  Co.    55 

1  West  Virginia,  87.  Wis.  319. 

*  14  W.  Va.  Reps.  180;  opinion  by  *  Morrison  v.  P.  &  C.  Construction 

Green,  P.,  distinctly  overruling  B.  &  Co.,  44  Wis.  405. 

O.   R.    R.    Co.    V.  Rathbone,    supra.  ^  D.  SlM.   R.  R.   Co.  v.  F.  &  M. 

Stee  also   Brown  v.  Adams  Ex.    Co.,  Bank,  20  Wis.  122. 


15  W\  Va.  812  ;  B.  &  O.  R.  R.  Co. 
Skeels,  3  W.  Va.  556. 


99 


§  140.]  BILLS    OF   LADING.  [CHAP.  VIII. 

elation  to  whom  the  property  entrusted  to  it  should  be  delivered 
by  the  company  for  the  performance  of  any  act  or  duty  in 
respect  thereto  at  any  point  or  place  ofi"  the  established  routes 
or  lines  of  the  company,  and  might  free  itself  from  liability  for 
any  loss  or  damage  of  any  box  or  package  for  over  $50  unless 
the  just  and  true  value  be  stated  in  the  receipt ;  or  for  property 
not  properly  packed  or  fragile  fabrics  not  so  marked  upon  the 
package  or  fabrics  consisting  of  or  contained  in  glass.  "  The 
conditions  of  this  receipt,"  said  the  Court,  "do  not  involve  the 
much  vexed  question  as  to  whether  a  common  carrier  can  pro- 
tect himself  by  contract  from  liability  for  losses  occurring 
through  his  own  negligence  or  misconduct  or  the  negligence  or 
misconduct  of  his  own  agents  or  servants."  During  the  same 
year  a  contract  that  the  owner  of  live  stock  would  assume  all 
risk  of  damage  or  injury  from  whatever  cause  happening  in  the 
course  of  transportation  was  held  to  be  valid.  The  Chief  Justice 
was  however  careful  to  say :  "  We  intimate  no  opinion  as  to 
whether  it  is  or  is  not  competent  tor  a  common  carrier  to  make 
stipulations  with  regard  to  other  kinds  of  property,  or  so  as  to 
protect  himself  against  loss  or  damage  arising  from  his  own 
negligence  or  the  negligence  or  omissions  of  his  agents  or 
servants."^  This  question  therefore  remains  undetermined  in 
Wisconsin.     It  has,  however,  been  said  by  the  court : 

"  We  do  not  understand  however  that  when  a  railroad  com- 
pany by  its  agent  agrees  to  deliver  goods  within  a  prescribed 
time,  it  becomes  an  absolute  insurer  of  the  goods  and  must 
deliver  at  all  events  or  pay  for  the  property.  We  suppose  if 
the  goods  were  destroyed  by  an  act  of  God  or  the  public  enemy 
before  the  time  for  delivering  them  expired  this  would  excuse 
the  carrier  on  the  special  contract.  The  parties  are  presumed 
to  contract  with  reference  to  the  responsibility  which  the  com- 
mon law  imposes  upon  the  carrier  in  ordinary  cases, — the  carrier 
assuming  the  risk  with  respect  to  the  time.  Such  it  seems  to 
us  is  the  extent  of  liability  assumed  by  the  special  agreement. 
And  with  this  understanding  as  to  the  meaning  and  obligation 
of  the  time  contract  alleged  to  have  been  made,  we  think  the 
County  Court  was  correct  in  holding  that  it  was  within  the 

'  Betts  V.  Farmers'  Loan  &  Trust  Co.,  21  Wis.  80. 

100 


CHAP.  VIII.]  CARRIERS   TO   LIMIT   LIABILITY.  [§  141. 

Bcope  of  the  employment  and  duty  of  the  agent  to  make  it 
binding  on  the  company." 

§  141.  From  this  examination  of  the  decisions  of  the  Ameri- 
can Courts  it  appears  that  the  general  rule  is  that  carriers 
may  limit  their  common  law  liability  by  special  contract  but 
public  policy  forbids  that  they  should  be  permitted  to  contract 
for  exemption  from  liability  for  loss  or  injury  attributable  to 
their  own  or  their  servant's  negligence.  To  this  general  rule 
exceptions  are  found  in  the  law  of  New  York,  of  Iowa,  of 
West  Virginia  and  of  Texas.^ 

1  Strom  V.  D.  &  M.  R.  R.  Co.,  23  Wis.  126. 

101 


§  142.] 


BILLS   OF   LADING. 


[chap.  IX. 


CHAPTER  IX. 


LIMITATION   OF   LIABILITY    TO   A    SPECIFIC    SUM. 


Effect  of  limitation  where  the  shipper 
is  silent  as  to  the  real  value,  §  146. 

Effect  of  limitation  where  several  arti- 
cles are  included  in  one  package, 
§147. 

Construction  put  upon  limitation  in 
Alabama  case,  §  148. 

Limitation  does  not  relieve  from  lia- 
bility for  negligence,  §  149. 


Limitation  of-  liability  to  a  specific 
amount  by  notice  and  advertise- 
ment, §  142. 

Such  notice  is  obligatory  because  in- 
tended to  insure  good  faith,  §  143. 

Limitation  of  liability  to  a  specific 
amount  by  the  terms  of  the  bill  of 
lading,  §  144. 

Benefit  of  the  limitation  to  carriers  other 
than  the  one  giving  the  bill,  §  145. 

§  142.  When  goods  are  tendered  for  shipment  the  shipper 
is  frequently  met  by  notice  from  the  carrier  that  the  latter  will 
not  be  liable  beyond  a  particular  amount  if  the  true  value  of 
the  goods  be  not  declared  by  the  shipper.  This  intention  of 
the  carrier  to  restrict  his  liability  may  be  brought  to  the  actual 
or  constructive  knowledge  of  the  shipper  by  advertisement,  by 
posting  of  placards,  or  by  a  clause  contained  in  the  bill  of 
lading  under  which  the  goods  are  carried.  If  notice  of  such  an 
intention  on  the  part  of  the  carrier  be  brought  home  to  the  know- 
ledge of  the  shipper  it  becomes  the  duty  of  the  latter  to  inform  the 
carrier  of  the  true  value  of  the  goods  or  he  will  be  bound  b}'  the 
limitation  of  liability  reserved  by  the  carrier.  The  notice  be- 
comes in  efiect  the  same  as  if  the  shipper  were  directly  interro- 
gated as  to  the  value  of  his  goods,  for  the  carrier  may  by  notice 
demand  information  as  to  the  nature  and  value  of  property  to 
be  carried.  There  is  some  disagreement  among  the  cases  as  to 
whether  the  carrier  can  so  restrict  his  liability  by  a  mere  notice 
or  even  by  a  stipulation  in  his  receipt  for  the  goods.  Some  of  the 
Courts  have  decided  that  he  cannot  ;^  some  that  he  can  do  so.^ 


'  Southern  Ex.  Co.  v.  Armstead, 
50  Ala.  350 ;  Adams  Ex.  Co.  v.  Stet- 
taners,  61  111.  184;  Southern  Ex.  Co. 
V.  Crook,  44  Ala.  468. 

102 


2  Brehme  v.  Adams  Ex.  Co.,  25 
Md.  328  ;  Kallman  v.  U.  S.  Ex.  Co., 
3  Kan.  205. 


CHAP.  IX.]      LIMITATION  OF  LIABILITY  TO  A  SPECIFIC  SUM.      [§  145. 

§  143.  A  distinction  exists  between  the  effect  of  those  notices 
by  a  carrier  which  seek  to  discharge  him  from  duties  which 
the  law  has  annexed  to  his  employment  and  those  designed 
simply  to  insure  good  faith  and  fair  dealing  on  the  part  of  his 
employer.  In  the  former  case,  notice  alone  is  not  effectual 
without  an  assent  to  the  attempted  restriction.  In  the  latter, 
notice  alone,  if  brought  home  to  the  knowledge  of  the  owner 
of  the  property  delivered  for  carriage,  will  be  sufficient.  Of 
the  latter  class  is  a  stipulation  in  a  carrier's  receipt  that  its 
liability  shall  not  exceed  $50  unless  the  goods  shipped  were 
valned.* 

§  144.  Bills  of  lading  (particularly  those  of  express  com- 
panies) frequently  contain  a  clause  limiting  the  carrier's  lia- 
bility to  a  particular  amount  in  case  of  loss.  This  is  some- 
times made  dependent  on  the  shipper's  failure  to  state  the 
value  of  the  goods  shipped. 

A  bill  of  lading  is,  however,  a  special  contract  for  carriage 
and  it  is  well  settled  that  the  carrier  may  by  special  contract 
limit  his  liability  to  a  specific  amount  if  he  be  not  truthfully 
informed  of  the  value  of  the  goods  f  but  it  would  seem  that 
the  restriction  of  liability  is  inoperative  if  the  goods  are  lost  or 
injured  by  reason  of  the  negligence  of  the  carrier.^ 

§  145.  A  carrier  cannot  take  advantage  of  a  clause  in  a 
receipt  given  by  another  carrier  and  to  which  he  is  not  a  party, 
containing  a  restriction  of  liability  to  a  certain  sum,  unless  the 
property  be  expressly  otherwise  valued  or  specially  insured.* 

•  Oppenheimer  v.  U.  S.  Express  Adams  Ex.  Co.,  93  111.  523 ;  Mag- 
Co.,  69  111.  62.  nin  v.  Dinsraore,  56  N.  Y.  168;   Am. 

2  S.  &  N.  A.  R.  R.  Co.  V.  Henlein,  Ex.    Co.   v.   Sands,  55    Pa.    St.  140; 

52  Ala.  606;  Muser  v.  Am.  Ex.  Co.,  Vroman  v.  A.  M.  W.  Ex.  Co.,  5  N. 

1  Fed.  Rep.  (U.  S.  C.  C.)  382;  Boor-  Y.  S.  C.  22;    Southern   Ex.    Co.  v. 

man  v.  Am.  Ex.   Co.,   21  Wise.  152;  Crook,  44  Ala.  468;  Erie  Dispatch  u. 

Southern  Ex.   Co.  v.  Crook,  44  Ala.  Jackson,    87   Tenn.  490;    Louisville, 

468;  Brehme  v.  Adams  Ex.  Co.,  25  etc.,  R.  Co.  v.  Sherrod,  84  Ala.  178; 

Md.  328;  Skipwith  v.  Great  West.  R.  St.  Louis,  etc.,  R.  Co.  v.  Weakly,  50 

Co.,  59  L.  T.  N.  S.  520.  Ark.  397. 

*  U.  S.  Ex.  Co.  V.  Backman,  28  ■*  Newberger  v.  Howard  &  Co.'s 
Ohio  St.  144  ;  Unnevehr  v.  Stm.  Hin-  Express,  6  Phila.  174  ;  Martin  v.  Am. 
doo,  1  Fed.  Rep.  627;  Boscowitz  v.  Express  Co.,  19  Wis.  336. 

103 


g  149.J  BILLS   OF  LADING.  [CIIAP.  IX. 

§  146.  Where,  under  a  contract  bj  which  the  carrier's  liability 
was  limited  to  $50,  unless  value  was  stated  by  the  shipper  and 
no  statement  of  value  was  asked  or  made,  it  was  held  that  the 
silence  of  the  shipper  as  to  the  real  value,  though  there  was 
no  inquiry  and  no  artifice  was  used  to  conceal  it,  was  a  legal 
fraud  on  the  carrier  and  discharged  hira  from  liability  for  mere 
ordinary  negligence  unaccompanied  by  wilful  misfeasance,  for 
responsibility  for  which,  disclosure  was  a  condition  precedent. 
The  carrier's  omission  to  make  inquiry  as  to  the  value  is  not  a 
waiver  of  the  limitation.^ 

§  147.  Where  three  cases  of  pills  were  wrapped  up  in  a  single 
package  and  two  of  them  were  lost,  the  bill  of  lading  limiting 
the  carrier's  liability  to  $50  upon  the  "  article  forwarded,"  it 
was  held  that  the  article  forwarded  was  the  single  package  and 
the  shipper  was  not  entitled  to  recover  $50  upon  each  of  the 
missing  cases.^ 

§  148.  In  Alabama  the  carrier's  liability  may  be  limited  to  a 
certain  amount  in  case  of  loss,  by  special  contract,  but  not  by 
mere  general  notices.  There  must  be  special  stipulations  signed 
by  the  party  owning  the  goods  and  the  stipulations  must  be 
also  in  the  opinion  of  the  Court  before  whom  the  case  is  tried, 
just  and  reasonable.  If  the  size  or  appearance  of  the  package 
indicates  its  value  to  be  greater  than  the  sum  named,  the  carrier 
will  be  presumed  to  waive  the  necessity  of  stating  value,  unless 
the  shipper's  attention  is  called  to  the  conditions  and  he  is 
required"  to  give  the  value.  As  to  bales  of  cotton  the  carrier 
can  see  for  himself  and  generally  knows  their  value  as  well  as 
the  shipper.^ 

§  149.  Carriers  cannot  by  contract  legally  stipulate  for  a 
partial  any  more  than  for  a  total  exemption  from  liability  for 
negligence  and  it  makes  no  difference  that  in  consideration  of 
the  limited  liability  the  carrier  undertook  the  transportation 
for  a  reduced  compensation.  A  clause  limiting  the  value  of 
certain  goods  to  $20  was  held  to  be  void  and  damages  were 
estimated  on  the  basis  of  the  real  value  of  the  goods.* 

1  Magnin  v.  Dinsmore,  70  N.  Y.  »  Southern  Express  Co.  v.  Crook, 
410  ;   Same  v.  Same,  62  ib,  35.  44  Ala.  468. 

2  Wetzell  V.  Dinsmore,  54  N.  Y.  "  U.  S.  Express  Co.  v.  Bachman, 
496.  28  Ohio  State,  144. 

104 


CHAP.  X.]        ACCEPTANCE  OF  BILL  IS  ASSENT  TO  ITS  TERMS.      [§  150. 


CHAPTER  X. 

ACCEPTANCE  OF  THE  BILL  IS  ASSENT  TO  ITS  TERMS. 


Acceptance  of  the  bill  by  the  shipper 

is  generally  held  to  be  an  assent  to 

its  terins,  §  150. 
Duty  of  the  shipper  to  read  the  bill, 

§151. 
In  Massachusetts  assent  must  be  proven, 

§152. 
So  also  in  Illinois,  §  153. 


Statutory  enactment  in  Dakota,  §  154. 

The  rule  in  Georgia,  Michigan,  Mary- 
land, §  155. 

The  rule  in  Ohio,  §  156. 

Assent  is  not  presumed  as  to  limita- 
tions indorsed  on  the  bill,  §  157. 

Assent  is  presumed  where  the  shipper 
is  familiar  with  the  terms,  §  158. 


§  150.  The  bill  of  lading,  as  we  have  seen,  is  signed  only 
by  the  carrier,  or  by  some  one  on  his  behalf,  and  is  usually 
handed  to  the  shipper  on  the  delivery  of  the  goods  to  the  car- 
rier. Where  a  shipper  with  full  knowledge  of  the  contents  of 
the  bill  of  lading,  assents  to  it  and  accepts  its  terras,  it  is  of 
coarse  a  binding  contract ;  defines  the  rights  and  liabilities 
of  the  parties^  and  cannot  be  contradicted  by  parol  proof.^ 

If  the  circumstances  are  such  as  to  charge  him  with  knowl- 
edge, as  where  the  bill  is  printed  or  made  out  by  himself,  his 
assent  will  be  presumed,^  but  where,  as  is  generally  the  case, 
the  bill  of  lading  is  simply  handed  to  the  shipper,  without 
anything  further  being  done,  the  law  differs  in  the  several 
States,  as  to  whether  or  not  his  receipt  of  the  bill  is  an  acceptance 
of  its  terms  and  conditions.  In  most  of  the  States,  in  the  absence 
of  fraud,  deceit,  or  mistake,  acceptance  is  conclusive  evidence 
of  assent.*    The  reason  for  this  is  well-stated  by  Mr.  Justice 


'  M.  D.  T.  Co.  V.  Leyser,  89  111. 
43;  U.  S.  Exp.  Co.  v.  Haines,  67  ib. 
137  ;  Anchor  Line  v.  Knowles,  66  ib. 
150;  Falkenau  v.  Fargo,  3  Jones  & 
Sp.  (N.  Y.  Supr.  Ct.)  332. 

2  C.  H.  &  D.  &  M.  R.  Co.  V.  Pon- 
tius, 19  Ohio  St.  221. 

3  Lawrence  v.  N.  P.  B.  R.  R.  Co., 
36  Conn.  63. 


*  Steele  v.  Townsend,  37  Ala. 
247  ;  The  Emily  v.  Karney,  5  Kan- 
sas, 645  ;  Mulligan  v.  Illinois  R.  R. 
Co.,  36  Iowa,  181  ;  Robinson  v.  M. 
D.  T.  Co.,  45  ib.  470;  Grace  v. 
Adams,  100  Mass.  505;  Hoadley  v. 
N.  T.  Co.,  115  ib.  305  ;  C.  H.  &  D. 
M.  R.  R.  V.  Pontius,  19  Ohio  St. 
221  ;    Huntingdon     v.    Dinsmore,    4 

105 


§  151.] 


BILLS   OF  LADING. 


[chap.  X. 


CooLEY  in  the  case  of  McMillan  v.  Michigan  R.  R.  Co.'  lie 
says :  "  Where  a  contract  is  to  be  signed  only  by  one  party  the 
evidence  of  assent  to  its  terms  by  the  other  party,  consists 
usually  in  his  receiving  and  acting  upon  it.  This  is  the  case 
with  deeds  poll  and  with  various  classes  of  familiar  contracts 
and  the  evidence  of  assent  derived  from  the  acce})tance  of  a 
contract  without  objection  is  commonly  conclusive.  I  do  not 
perceive  that  bills  of  lading  stand  upon  any  different  footing." 
§  151.  Again,  the  character  of  a  bill  of  lading  is  such  as  to 
throw  the  shipper  upon  his  guard  when  he  receives  it.  Its 
office  is  to  limit  the  carrier's  liability  and  the  shipper  would 
necessarily  expect  conditions  unfavorable  to  his  own  interests. 
It  is  therefore  his  duty  to  read  it  and  he  cannot  take  advan- 
tage of  a  failure  to  do  so  by  pleading  ignorance  of  its  terras 
and  want  of  assent  thereto.^  There  may  however  be  circum- 
stances in  which  the  shipper  will  be  relieved  from  the  duty  of 
reading  the  bill.  For  example,  where  he  is  misled  by  the  car- 
rier as  to  the  character  of  the  instrument,  as  where  he  is  told 


Hun  (N.  Y.),  66  ;  Brehme  v.  Adams 
Exp.  Co.,  25  Md.  328;  Long  t'. 
N.  Y.  Cent.  R.  R.  Co.,  50  N.  Y.  7G; 
Snider  v.  Adams  Exp.  Co.,  63  j\Io. 
376  ;  Am.,  etc.,  Exp.  Co.  v.  Schier,  55 
111.  140  ;  Dillard  v.  Louisville,  etc., 
R.  R.  Co.,  2  Lea  (Tenn.),  288;  E. 
T.  V.  &  G.  R.  R.  Co.    V.  Brumley, 

5  ib.  401  ;  Newberger  v.  Howard,  6 
Phila.  (Pa.)  174;  Farnham  u  C.  & 
A.  R.  R.  Co.,  55  ib.  53  ;  Westheimer 
V.  Penna.  R.  R.  Co.  8  W.  N.  C.  ib. 
272  ;  Bostwick  v.  B.  &  O.  R.  R.  Co., 
55  Barb.  (N.  Y.)  137;  Magh'ee  v.  C. 

6  A.  R.  R.  Co.,  45  ib.  514  ;  Belger 
r.  Dinsmore,  51  ib.  166  ;  Soumet  r. 
Nat.  Exp.  Co.,  66  ib.  284  ;  Degitz  v. 
Holland,  6  Chicago  Legal  News,  224 
(Marine  Ct.  N.  Y.)  ;  Gibson  v.  Amer. 
Merch.  Union  Exp.  Co.,  3  N.  Y. 
(S.  C.)  501 ;  Kirkland  v.  Dinsmore, 
62  id.  171;  reversing  S.  C,  8  Hun, 
296  ;  4  T.  &C.  304;  HilU.  S.  B.  N. 
Y.  R.  R.  Co.,  73  ib.  351  ;    reversing 

106 


S.  C.  8  Hun,  296;  Germania  F.  I. 
Co.  V.  M.  &  C.  R.  R.  Co.,  72  ib.  90; 
Bishop  «.  E.  T.  Co. ,  48  How.  Pr.  119; 
see  also  Newman  v.  Smoker,  25  La. 
Ann.  303  ;  contra,  Christenson  v.  Am. 
Exp.  Co.,  15  Minn.  270;  Chouteaux 
V.  Leech,  6  Harris  (Pa.),  224  ;  Dray- 
sen  V.  Home,  32  L.  T.  N.  8.  691  ;  23 
W.  R.  793 ;  The  Delaware,  14  Wal- 
lace, 579  ;  Ayers  v.  Western  T.  Co., 
14  Blatchford  (C.  C),  9  ;  Sunderland 
V.  Westcott,  2  Sweeney  (N.  Y.  Supr. 
Ct.),  260. 

^  16  Mich.  79. 

2  Bostwick  V.  B.  &  O.  R.  R.  Co., 
55  Barbour,  137;  Kirkland  v.  Dins- 
more, 62  N.  Y.  171  ;  Hill  v.  S.  B. 
&  N.  Y.  R.  R  Co.,  73  ib.  351  ;  Grace 
V.  Adams,  100  Mass.  505;  O'Brvan 
V.  Kinney,  74  Mo.  125;  Snider 
V.  Adams  Exp.  Co.,  63  ib.  376  ; 
O'Rourke  v.  Ry.  Co.,  23  W.  C. 
Q.  B.  427. 


CHAP.  X.]      ACCEPTANCE  OF  BILL  IS  ASSENT  TO  ITS  TERMS.        [§  151. 

by  the  carrier's  agent  that  it  is  a  mere  receipt,^  or  where  it  is 
given  to  him  in  answer  to  his  demand  for  a  "  receipt."^     Or,  if 
the  circumstances  of  the  case  are  such  as  to  put  the  shipper  off 
his  guard  and  to  lead  him  to  the  belief  that  the  instrument  is 
nott  bill  of  lading,  as  in  the  cases  where  the  contract  of  car- 
riage had  been  already  made  by  a  prior  parol  agreement  and 
the'^bill  of  lading  is  given  to  the  shipper  afterwards  and  he  sup- 
poses it  to  be  a  mere  receipt  ;3  or  where  the  circumstances  are 
snch  that  he  may  well  have  presumed  that  the  bill  of  lading 
would  not  differ  in  terms  from  those  previously  understood  ;*  or 
where  the  goods  are  already  out  of  the  shipper's  power  and  he 
objects  to  the  proposed  limitation  ;«  or  if  the  limitations  of  the 
carrier's  liability  are  inserted  in  such  a  manner  as  not  to  attract 
the  attention  of  the  shipper,^  as  if  they  are  printed  in  type  so 
small  as  to  be  inconspicuous^  or  illegible.^    In  Fibel  v.  Livmgs- 
ton,«  however,  a  receipt  was  held  a  contract,  although  taken  by 
a  foreigner  ignorant  of  the. language  in  which  it  was  printed 
and  to  whom  no  explanation  of  its  terms  was  vouchsafed. 

In  some  of  the  states  a  different  rule,  however,  prevails.  In 
Wisconsin,  possession  by  a  shipper  of  a  receipt  restricting  the 
liability  of  the  carrier  is  only  imrna  fade  evidence  of  his  assent 
to  the  restrictions  and  may  be  contradicted  by  parol  evidence. 
If  it  appeared  that  he  examined  the  receipt  and  knew  its  con- 

•  Simmons  v.  G.  W.  Ry.  Co.,  2  233  ;  S.  C.  72  ib.  90;  Bostwick  v.  B. 
C   B   N    S   620.  &  O-  ^'  ^-  C^'-'  ^-^  ^'''■^-  ^^^• 

"2  Kirkland  r.  Dinsmore,  4  N.  Y.  "  Buckland  v.  Adams  Exp.  Co.,  97 
S.  C.  304;  Woodrufi-i;.  Sherrard,  9  Mass.  124;  Perry  v.  Thompson,  98 
Hun  (N.  Y.),  322.  ib.  249.  ..    „   t>     n 

3  Bostwick  V.  B.  &  O.  R.  R.  Co.,  5  Bostwick  v.  B.  &  O.  R.  It.  Co., 
45  ib    712;    King  v.  Woodbridge,  34     45  N.  Y.  712. 

Ver.  565  ;  Missouri  Pac.  Ry.  v.  Bee-        «  Cooley,  J.,  in  McMillan  ..  Mich, 
son,   30  Kans.   298;    Strohn  v.  D.  &     R.  Co.,  16  Mich.  79. 
M.  R.  R.  Co.,  21  Wis.  554;  but  see        ''  Verner  v.  Switzer,  8  Casey  (Pa.), 
Swift  V.  Pac.  Mail  St.  Co.,  106  N.  Y.     208. 

206;    Blossom  v.  Dodd,  43   ib.  264;         «  Blossom  v.  Dodd,  43  N.  Y.  264; 
Madan  v.  Sherrard,  42  N.  Y.   Supr.     Madan  v.  Sherrad,  73  ib.  329. 
Ct.  Rep.  353  ;   Woodburn  v.  Railroad         «  64  Barb.  179.     See  also  Warhus 
Co.,  40  Fed.  Rep.  731  ;   Germania  F.     v.  Savings  Bank,  21  N.  Y.  543. 
I.  Co.  V.  M.  C.  R.  R.  7  Hun  (N.  Y.), 

107 


§  154.]  BILLS   OF   LADING.  [CHAP.  X. 

tents  and  did  not  offer  to  return  it  or  give  notice  of  his  dissent, 
this  would  seem  to  be  conclusive  evidence  of  assent.* 

§152.  In  Massachusetts  assent  must  be  shown.  It  is  not 
necessarily  to  be  inferred  from  knowledge  by  the  shipper  of  the 
restrictions  of  liability.  The  evidence  must  go  further  and 
show  that  the  terms  on  which  the  carrier  proposed  to  carry  the 
goods  were  adopted  as  the  contract  between  the  parties  accord- 
ing to  which  the  service  was  to  be  rendered.'  In  Perry  v. 
Thompson,^  it  was  held  that  no  inference  of  consent  to  the 
limitations  of  the  carrier's  liability  by  the  bill  of  lading  could 
be  drawn  from  continued  use  of  the  same  printed  form  in  former 
transactions  between  the  same  parties. 

§  153.  In  Illinois  no  presumption  of  the  assent  of  the  ship- 
per to  the  terms  of  the  bill  of  lading  can  arise  from  the  mere 
receipt  of  it  by  him,  or  from  notice  to  him  of  its  contents. 
Assent  must  be  affirmatively  shown*  and  while  it  is  not  neces- 
sary that  the  shipper  should  sign'  the  bill,  there  must  be 
express  assent  to  its  terms,  or  circumstances  which  clearly  show 
assent.  Assent  is  a  question  of  fact  for  the  jury  to  determine 
from  all  the  circumstances  attending  the  giving  of  the  receipt.' 

§  154.  In  Dakota  it  is  provided  by  statute  that  a  consignor, 
by  accepting  a  written  contract  for  carriage  with  knowledge 

*  Boorman  v.  Am.  Exp,  Co.,  21  150;  Anchor  Line  r.  Dater,  68  ib. 
Wis.  152;  Strohn  v.  D.  U.  Ry.  Co.,  368  ;  Chicago,  etc.,  R.  Co.  v.  I\Iont- 
ib.  554;  Falvey  v.  N.  T.  Co.,  15  ib.  fort,  60  ib.  175;  111.  Cen.  R.  R.  Co. 
129  ;  The  Sultana  v.  Chapman,  5  ib.  v.  Frankenberg,  54  ib.  88 ;  Erie  Ry. 
454;    Morrison  v.  Phillips  &  Co.,  44  Co.  v.  Wilcox,  84  ib.  239. 

ib.  405;  White  v.  G.  T.   Co.,  46  ib.        «  M.   D.  T.   Co.  v.  Leyser,  89  III. 

493.     See  also  Detroit  R.  R.  Co.  v.  43  ;  M.  D.  T.  Co.  v.  Theilbar,  86  ib. 

Farmer's  Bank,  20  ib.  127.  71;  American  Merc.    Union  Ex.  Co. 

2  Buckland  v.  Adams  Ex.  Co.,  97  v.  Schier,    55  ib.    140;   Field   v.  Cbi- 

Mass.  124.  cago,  etc.,  Ry.  Co.,  71  ib.  458;    Ad- 

»  98  Mass.  249.     See  also  Pratt  v.  ams   Ex.   Co.   v.  Haynes,  42  ib.  89 ; 

O.  and  L.  C.  R.  R.  Co.,  102  ib.  557.  111.   Cen.  R.  R.   Co.  t'.  Frankenberg, 

But  see  §  158  posf.  54  ib.  88;    Chicago,   etc.,    R.   Co.  v. 

*  M.  D.  T.  Co.  V.  Joesting,  89  111.  Montfort,  60  ib.  175;  Boscowitz  v. 
152  ;  W.  T.  Co.  v.  Newhall,  24  ib.  466  ;  Adams  Ex.  Co.,  93  ib.  523  ;  Anchor 
Erie  R.  Co.  y.  Wilcox,  84  ib.  239.  Line   «.  Dater,   61    ib.   369;    Adams 

*  U.  S.  Ex.  Co.  V.  Haines,  67  HI.  Ex.  Co.  v.  Stettaners,  61  ib.  184.  See 
137  ;  M.  D.  T.  Co.  v.  Leyser,  89  ib.  also  legislation  on  this  point  in  Illinois. 
43;  Anchor  Line  v.  Knowles,  66  ib. 

108 


CHAP.  X.]      ACCEPTANCE  OF  BILL  IS  ASSENT  TO  ITS  TERMS.        [§  157. 

of  its  terms,  assents  to  the  rate  of  hire  and  the  time,  place 
and  manner  of  delivery  therein  stated,  but  that  his  assent  to 
any  other  modification  of  the  carrier's  obligation  contained  in 
such  instrument  can  only  be  manifested  by  his  signature 
thereto.* 

§  155.  In  Maryland,^  Georgia^  and  Michigan,*  agreement  to 
the  terms  of  the  bill  of  lading  must  be  proven  by  the  carrier, 
and  cannot  be  presumed  from  acceptance  of  special  rates  of 
freight.  So  in  Mississippi,'  where,  if  it  is  merely  doubtful 
vphether  the  consignor  intended  to  waive  her  legal  rights,  it 
was  held  that  public  policy  requires  they  should  be  presumed 
and  upheld.® 

§  156.  In  Gaines  v.  U.  T.  Co.^  the  court  of  Ohio  held  that  the 
principles  of  the  law  which  create  obligations  ex  contractu  by 
an  implied  promise  or  constructive  assent  have  no  application 
to  the  contracts  limiting  the  liability  of  a  common  carrier.  To 
such  limitation  there  must  be  express  assent.  Every  intendment 
should  be  made  in  favor  of  the  shipper  where  he  takes  a  receipt 
for  his  property  with  restrictive  conditions  annexed  and  says 
nothing,  that  he  intends  to  rely  upon  the  law  for  the  security 
of  his  rights..  There  must  be  evidence  of  the  shipper's  assent 
else  the  presumption  is  that  he  relies  on  his  common  law  rights. 
The  question  of  assent  is  entirely  one  of  fact  for  the  jury. 

§  157.  A  limitation  of  a  carrier's  liability  contained  in  a 
notice  indorsed  on  a  bill  of  lading  is  held,  in  the  Federal  Courts, 
to  be  no  part  of  the  contract  and  is  of  no  avail  in  varying  the 
shipper's  rights,^  and  in  Western  Transp.  Co.  v.  N'ewhall,^  the 

>  Dak.  T.  Civ.  Code,  §  1263  ;  Hart^  «  Mobile  &  Ohio  R.  R.  Co.  v.  Wei- 
well  V.  North  Pacif.  Exp.  Co.,  5  Dak.  ner,  49  Miss.  725. 
T.  463.  ®  South.    Ex.    Co.    v.    Moon,     10 

«  B.  &  O.  R.  R.  Co.  V.  Brady,  32  George  (Miss.),  822. 

Md.  333  ;  McCoy  v.  E.  &  W.  T.  Co.,  ''  28  Ohio  State,  418 ;  P.  C.  &  St. 

42  ib.  498.  !-•  R-  R-  Co.  v.  Barrett,  36  ib.  448. 

3  Wallace  v.  Sanders,  42  Ga.  486.  »  Brittan  v.  Barnaby,  21  How.  (U. 

*  Am.  Trans.  Co.  v.  Moore  (S.  C.  S.  C.  C.)  527  ;  Ormsby  v.  U.  P.  R. 

Mich.)  7  Am.  Law  Reg.  O.  S.  352  ;  R.  Co.,  4  Fed.    Rep.  (U.   S.  C.  C.) 

M.   C.   R.  R.   Co.  V.  Hale,  6  Mich.  706 ;    Ayers   v.   West.    R.    Co.,    14 

257;  Hartness   v.  G.  W.    R.   Co.,  2  Blatchford  (U.  S.  C.  C),  9. 

Brown  (Mich.),  80.     But  see  McMil-  »  24  111.  466  ;  R.  R.  Co.  v.  Mf.  Co., 

Ian  V.  Michigan  Ry.  Co.,  16  Mich.  79.  16  Wall.  318. 

109 


§  158.] 


BILLS   OF   LADING. 


[chap.  X. 


Court  of  Illinois  hold  that  there  is  no  distinction  between  such 
a  notice  and  one  printed  in  newspapers  or  hy  liandbills  and 
that  a  notice  indorsed  on  the  receipt  forms  no  part  of  the  con- 
tract. The  rule  in  regard  to  notices  indorsed  on  the  bill  of 
lading  is  the  same  in  Xew  York.'  "Where,  however,  the  bill 
of  lading  refers  in  plain  terms  to  the  conditions  indorsed  upon 
it,  the  shipper,  if  he  assented  to  the  former,  will  be  bound  by 
the  latter,^  especially  where  there  is  evidence  aliunde  showing 
his  assent.^ 

§  158.  The  use  of  the  same  form  of  bill  of  lading  in  several 
transactions  by  the  shipper  is  good  evidence  of  knowledge  of 
its  terms*  and  presumption  of  assent  thereto.*  So  is  the  fact 
that  the  owner  of  goods  by  himself  or  his  clerk  filled  up  the 
receipt* 

1  Limburger  r.  Westcott,  49  Barb.  *  E.   \\ .   T.   Co.  v.   Datcr,  91  111. 

(N.   Y.)  283 ;    Sunderland  v.   West-  1 95. 

cott,  2  Sweeney  (N.  Y.  S.  C),  2G0.  «  M.   I).  T.   Co.  v.  Moore,  88  111. 

*  U.  &  M.  R.  R.  Co.   V.  Farmer's  136. 

Bank,  20  Wis.  122;  Mayer  v.  G.  T.  «  Bosoowitz  v.  Adams  Ex.  Co.,  93 

R.  Co.,  31  U.  C.  C.  P.  248.  111.  523;  and   see   U.    S.    Ex.   Co.   v. 

3  Hartness    v.   G.   W.   Ry.    Co.,  2  Haines,  67  ib.  13  7.   , 
Brown  (Mich.),  80.     See  also  Falken- 
berg  V.  Clark,  U  R.  I.  279. 

110 


CHAP.  XI.]      EXECUTION   OR   ACCEPTANCE   OF   THE   BILL.  [§  159. 


CHAPTER  XI. 

EXECUTION   OR  ACCEPTANCE    OF  THE  BILL  BY  AN  AGENT 
OF  THE  SHIPPER,  OR  OF  THE  CARRIER. 


Authority  of  an  agent,  delivering  goods 
to  the  carrier,  to  bind  the  shipper, 
§159. 

Knowledge  of  ao  authorized  agent  as 
to  numner  of  shipping,  is  the  knowl- 
edge of  the  shipper,  §  160. 

Rule  in  those  states  where  assent  to 
terms  must  be  shown,  §  161. 

Contract  made  by  an  agent  in  his  own 
name  benefits  the  real  owner,  §  162. 

A  principal  must  adopt  his  agent's  con- 
tract as  a  whole,  §  163. 

Carrier  having  dealt  with  an  agent 
caunot  deny  such  agent's  authority, 
§  164. 

Where  goods  are  shipped  by  a  vendor 
or  by  an  agent  of  the  consignee,  §  1 65. 


Bill  executed  by  an  agent  of  the  car- 
rier, §  166. 
Agent  not  authorized  to  sign  bills  for 

goods  not  actually  received  and  such 

bills  are  void,  §  16  7. 
Contrary  rule  obtains  in  certain  courts, 

§168. 
Agent  of    the  carrier  must   be   duly 

authorized  to  sign  bills,  §  169. 
Who  are  authorized,  §  1  70. 
Who  are  not  authorized,  §  171. 
Instructions  to  carrier's  agent  do  not 

bind  the  shipper,  §  172. 
Effect  of  an  agent's  agreement  to  make 

immediate  delivery,  §  173. 
Limitations  of  agent's  power  to  make 

a  specialcontract,  §  174. 


§  159.  A  CONTRACT  with"  an  agent  about  the  business  to  which 
the  agency  relates  is  a  contract  with  the  principal  and  its  va- 
lidity is  not  aiFected  by  a  limitation  of  the  agent's  authority  of 
which  the  other  contracting  party  had  no  notice.^  Therefore, 
a  carrier  who  receives  goods  is  not  required  to  investigate  the 
authority  of  the  person  shipping  them  to  make  a  contract  lim- 
iting the  carrier's  liability^  and  the  general  rule  may  be  stated 
to  be  that  the  agent  of  a  shipper  has  power  to  make  a  special 
contract  with  a  common  carrier  limiting  the  latter's  responsi- 
bility.^  The  rule  is  based  on  the  principle  that  an  order  to  an 
agent  to  deliver  goods  to  a  carrier  for  transportation,  includes 
all  the  necessary  and  usual  means  of  carrying  it  into  efiect.     It 

»  Chouteauxy.  Leech,  18  Pa.  St.  224.         ^  Knell  v.  U.  S.  &  Brazil  S.  S.  Co., 
2  Moriarity   v.  Harnden's   Exp.,   1     1  Jones  &  Spencer  (33  N.   Y.  Supr. 
Daly  (N.  Y.),  227.  Ct.),  423. 

Ill 


§  162.]  BILLS   OF  LADING.  [CHAP.  XI. 

can  be  executed  only  by  obtaining  the  consent  of  the  carrier  to 
receive  them  and  the  agent  therefore  is  authorized  to  stipulate 
for  terras  of  transportation.^  It  is  not  necessary  for  the  carrier 
to  prove  an  express  power  in  the  shipping  agent.  It  is  enough 
if  it  appears  that  the  agent  had  before  done  such  acts,  or  had 
occupied  such  a  position  in  the  employ  of  the  shipper  as  usually 
entitles  the  incumbent  to  perform  such  acts.^ 

§  160.  Knowledge  by  the  shipper's  agent,  gained  in  the 
transaction  of  the  duty  delegated  to  him,  is  knowledge  by  his 
principal.  Therefore,  where  an  agent  is  present  at  the  time  of 
shipment  and  sees  that  the  goods  must  necessarily  be  exposed 
to  the  rain  and  mud,  the  carrier  will  not  be  liable  for  damage 
80  suftered.'  On  the  other  hand  the  shipper' will  not  be 
bound  by  private  knowledge  of  his  agent,  of  which  the  shipper 
himself  is  ignorant.* 

§  161.  In  those  states,  however,  in  which  the  assent  of  the 
shipper  to  limitations  of  the  liability  of  the  carrier  by  the  terms 
of  the  bill  of  lading  must  be  affirmatively  shown  by  the  carrier, 
the  knowledge  and  assent  of  the  agent  of  the  shipper  to  the 
terms  of  the  bill  of  lading  are  not  enough  to  free  the  carrier 
from  liability  and  a  drayman  entrusted  by  a  shipper  with 
the  delivery  of  the  goods  to  a  carrier  was  held  to  be  a  mere 
bailee  for  hire  to  take  the  package  to  the  wharf  and  obtain  a 
receipt.^ 

§  162.  The  fact  that  a  contract  of  carriage  is  made  with  the 
carrier  by  a  mere  agent  in  his  own  name,  without  disclosing 

'  Nelson  v.  H.  R.  R.  R.  Co.,  48  N.  ^  Newman  v.  Smoker,  25  La.  Am. 

Y.  498 ;  Thompson  v.  Fargo,   63  N.  Rep.  303  ;  Berry  i;.  Cooper,   28  Ga. 

y.  (Ct.  of  App.)  479  ;  McCann  v.  B.  543. 

&  O.  R.  R.  Co.,  20Md.  202;  Pecksy.  '•Berry   v.    Cooper,    28    Ga.    543;" 

Dinsmore,  4  Porter  (Ala.),  212;  York  Beau  v.  Green,  12  Me.  422. 

Co.  V.  Central  R.  R.,  3  Wall.  107;  «  Falveyv.  N.  T.  Co.,  15  Wis.  129; 

Grace    y.   Adams,    100    Mass.     505;  The  Pacific,  Deady  (  D.  C),  17 ;  M. 

Squire   v.  N.  Y.  C.  R.  R.    Co.,    98  D.  T.  Co.  v.  Joesting,   89  111.    152; 

Mass.  239 ;  Mayhew  v.  Eames,  3  B.  Buckland    v.    Adams    Exp.     Co.,    97 

&  C.  601 ;  Merchant's  Dispatch  Co.  v.  Mass.  124;   Gaines  v.  Un.  T.  Co.,  28 

Joesting,  89  111.  152.  Ohio,  418  ;  Am.  Trans.  Co.  v.  Moore, 

"  Dows  V.  Greene,  16  Barbour  (N.  5  Mich.  368. 
Y.),  72. 

112 


CHAP.  XL]      EXECUTION    OR   ACCEPTANCE   OF   THE   BILL.  [§  165. 

his  principal,  does  not  deprive  the  owner  of  the  goods  of  his 
action  against  the  carrier  for  a  breach  of  the  contract.  ^  For 
example,  where  a  railroad  company  takes  a  bill  of  lading  in  its 
own  name  for  goods  shipped  by  A.,  the  company  is  A.'s  agent 
and  the  contract  inures  to  his  benefit.^ 

§  163.  Where,  however,  a  shipper  adopts  a  contract  made"  by 
his  agent  containing  certain  restrictions  of  liability,  which  the 
agent'  had  no  authority  to  make,  he  must  adopt  it  entirely 
and  cannot  adopt  a  part  and  repudiate  a  part.  Where  he  sues 
upon  the  contract  he  must  abide  by  its  terms.^  Where  a 
shipper's  agent  contracts  without  authority  with  several  car- 
riers, all  of  whom  are  liable,  the  shipper  having,  by  bringing 
suit  against  one,  adopted  the  contract  with  him,  cannot  recover 
against  the  others.  Thus,  where  A.  contracts  for  the  carriage 
of  certain  goods  with  B.,  who  without  the  knowledge  or  direc- 
tion of  A.  contracts  with  C.  for  their  carriage,  who  also  with- 
out the  knowledge  of  A.  contracts  with  R,  who  loses  them, 
then  A.  can  recover  from  D.,  but  having  chosen  to  sue  D.  can- 
not after  that  recover  from  B.  or  C 

§  164.  On  the  other  hand,  a  common  carrier,  after  contract- 
ing with  a  party  as  the  agent  of  a  consignor,  cannot  afterward 
deny  such  agent's  authority  as  against  such  consignor.* 

§  165.  Where  the  consignor,  who  is  the  vendor*  or  the 
bailee  of  goods,«  or  a  forwarding  carrier,'  ships  goods  at  the 
direction  of  the  consignee  of  said  goods,  he  acts  as  the  agent  of 
the  consignee  for  the  purpose  of  obtaining  transportation  and 
as  such  has  authority  to  make  such  a  contract  with  the  carrier 
as  in  the  honest  exercise  of  his  discretion  he  sees  tit.^    Where, 

'  Ames  V.  St.  P.  &  P.  R.  R.  Co.,  Hun  (N.  Y.),  185;  Gordons.  Ward, 

12  Minn.  412  ;  Patterson  r.  Clyde,  67  16  Mich.  .360. 

Pa.  St.  500;  N.  J.  S.  N.  Co.  v.  Mer-        «  Soumet   v.    Nat.    Exp.    Co.,     66 

chants'  Bk.,  6  How.  344.  Barb.  284 ;  Squire  v.  N.  Y.  C.  R.  R., 

2  Southern  Express  Co.  v.  Palmer,  98  Mass.  239. 

48  Ga.  85  ;  N.  J.  Steam  Nav.  Co.  v.  ^  Patterson   v.   Clyde,  67    Pa.    St. 

Merchants'  Bank,  6  Howard,  344.  500. 

3  Sanderson  u.  Lamberton,  6  Binney  »  Soumet  v.  Nat.  Exp.  Co.,  66 
(Pa.),  128.  Barb.  284;  Shelton  v.  M.  D.  T.  Co., 

*  Baker  i;.  Steamboat    Milwaukee,  59  N.  Y.  258 ;  Robinson  v.  M.  D.  T. 

14  Iowa,  214.  Co.,  45  Iowa,  470  ;  Adams  v.  Crosby, 

s  Wiec'ins  V.    Erie    R.  R.    Co.,   5  2  Nov.  Scot.  Law  Rep.    (R.   &  G.). 
«  113 


§  167.]  BILLS   OF    LADING.  [CIIAP.  XI. 

however,  there  has  been  a  previous  contract  between  the  con- 
signee and  the  carrier,  the  consignor,  acting  as  the  agent  of  the 
consignee,  has  no  authority  to  varj'  that  contract.*  One  who 
forwards  goods  in  execution  of  an  order  or  agreement  for  sale  is 
not  a  mere  agent  of  the  purchaser  in  so  doing.  lie  is  acting  in 
his  own  interest  and  his  dealings  with  the  carrier  are  in  his 
own  right  and  upon  his  own  responsibility.  He  may  enforce 
the  contract  of  the  carrier  and  inferentially  he  may  contract 
for  the  transportation  in  any  manner  he  pleases.^ 

§  166.  A  common  carrier,  whether  by  water  or  rail,  is  bound 
by  all  the  acts  of,  or  contracts  made  bj',  its  agents  within  the 
scope  of  their  authority  and  by  the  knowledge  of  its  agents 
attained  in  the  course  of  the  transaction.^  Carrier's  agents  are 
therefore  authorized  to  sign  and  issue  bills  of  lading*  and  in  the 
absence  of  fraud  or  imposition  the  receipt  so  delivered  to  the 
shipper  must  be  held  to  be  the  contract  between  the  parties." 

§  167.  The  agent's  authority  is  subject  to  the  important 
limitation,  of  which  the  public  is  held  to  have  notice  that  he  is 
only  authorized  to  issue  bills  of  lading  for  goods  actually  re- 
ceived.^ A  bill  of  lading  issued  for  goods  which  have  never 
been  placed  in  the  possession  of  the  carrier  is  absolutely  void, 
even  in  the  hands  of  one  who  has  advanced  money  upon  it  in 
good  faith  and  without  notice.'' 

331.     Contra,    Amer.   Trans.    Co.  v.  *  Rawes  v.   Deshler,  3  Keys,  572  ; 

Moore,   5  Mich.   368,    where   tlie   \n-  Putnam  i'.  Tillotson,  13  Met.  517. 

thority  of  the  vendor  in  any  paiticular  ^  Huntingdon   v.  Dinamore,  4  Hun 

case  to  contract  on  behalf  of  the  con-  (N.   Y.),  66;   Scovillc  v.   Griffith,  12 

signee  is  said  to  be  a  question  of  fact  N.  Y.  (Ct.  of  Apj).)  509. 

for  the  jury.     Contra,  also,  in  Illinois,  ^  Union,  etc.,  R.  R.  Co.  v.  Y'^eager, 

where  the  affirmative  consent  of  the  34  Ind.   1  ;   Hall  v.   Mayo,    7   Allen, 

shipper  is  always  required  to  any  con-  454  ;  Ryder  v.  Hall,  ib.  456  ;  B.  &0. 

tract   limiting  the   carrier's    liability.  R.   R.   Co.    v.    Wilkins,  44    Md.    II; 

M.  D.  T.  Co.  V.  Joesting,  89  111.  152  ;  Dean  v.  King;  22  Oh.  St.  119  ;   Sears 

and  see   bill   of  lading   executed   by  i\  Wingate,  3  Allen,    103  ;  Oliver  o. 

shipper's  agent,  supra.  G.  W.  R.  Co  ,  28  U.   C.  C.  P.  Rep. 

'  Wiggins  V.  Erie  R.  R.  Co.,  5  143;  Kirkman  v.  Bowman,  8  Robin- 
Hun  (N.  Y.),  185.  son  (La.),  246  ;   The  Lady  Franklin, 

2  Finn  v.   West.   R.  R.  Corp.,  112  8  Wallace,  325. 

Mass.  524.  7  Friedlander  v.  Texas,  etc.,  R.  R. 

«  Harmon  y.  N.Y.  &E.  R.  R.  Co.,  Co.,    130    U.    S.    424;    Robinson    v. 

28  Barbour,  323,  and  cases  cited  below.  Memphis,  etc.,  R.  R.  Co.,  9  Fed.  R. 

114 


CHAP.  XI.]      EXECUTION    OR   ACCEPTANCE    OF   THE    BILL.  [§  169. 

§  168.  A  contrary  rule  is  established  in  New  York,^  Penn- 
sylvania,^  Kansas^and  Nebraska^  and  the  recent  English  case 
of  Coventry  v.  G.  E.  R.  Co.'  seems  to  be  in  conflict  with  the 
earlier  English  cases. 

§  169.  In  order  to  be  binding  upon  the  carrier,  the  bill  of 
lading  must  be  issued  by  one  who  is  the  agent  of  the  company, 
duly  authorized  and  empowered  to  act  in  that  capacity .«  The 
question  of  agency  is  one  for  the  jury  to  decide'  but  the  agency 
may  be  inferred  from  the  adoption  by  the  company  or  its  officers 
of  the  agent's  acts,  either  expressly^  or  impliedly,  as,  where  the 
officers  of  the  company  knew  that  the  alleged  agent  acted  as 
such  and  made  no  objection.  In  such  a  case  the  carrier  will  be 
bound  by  the  act  of  the  agent.^  Where  the  company  has  been  in 
the  habit  of  allowing  the  agent  to  make  contracts  which  would 
otherwise  be  in  excess  of  his  authority,  it  will  be  estopped  from 
denying  the  agent's  authority^''  and  where  the  carrier  has 
taken  advantage  of  the  contract  made  with  the  shipper  by  the 
carrier's  agent,  it  cannot  repudiate  the  contract  on  the  ground 
that  the  agent  had  no  authority  to-make  it.^> 


129;  StoUenwerck  v.  Thaoher,  115 
Mass.  224  ;  Saltus  v.  Everett,  20 
Wend.  268  ;  La.  Nat.  Bank  of  N. 
O.  V.  Laveille,  52  Mo.  380;  Hunt 
V.  Miss.  Cent.  R.  R.  Co.,  29  La. 
Ann.  Rep.  446;  B.  &  O.  R.  R. 
Co.  V.  Wilkins,  44  Md.  11  ;  Erb  v. 
G.  W.  R.  R.  Co.,  5  Duval  (Canada 
S.  C),  179  ;  affirming  3  Tupper  (Cent. 
App.),  456  ;  Tiedman  v.  Knox,  53 
Md.  612  ;  Williams  v.  M.  &  W.  R. 
Co.,  93  N.  C.  42  ;  Pollard  v.  Vinton, 
105  U.  S.  7;  Grant  v.  Norway,  2 
Eng.  L.  &  Eq.  337  ;  The  Schooner 
Freeman  v.  Buckingham,  18  How. 
182 ;  Hubbersty  v.  Ward,  8  Exch. 
330  ;  Jessel  v.  Bath,  L.  R.  2  Exch. 
267  ;  The  1-oon,  7  Blatch.  C.  C.  Rep. 
244;  La.  Nat.  Bank  v.  Laveille,  52 
Mo.  380  ;  Thorman  v.  Burt,  54  l.,aw 
Times  (U.  S.),  349;  Coleman  v. 
Riches,  29  Eng.  L.  &  Eq.  323. 

'  Armour  v.  R.  R.  Co.,  65  N.  Y. 


Ill  ;  Bank  of  Batavia  v.  New  York, 
Lake  Erie  &  Western  R.  Co.,  106  N. 
Y.   195. 

2  Brooke  v.  N.  Y.,  etc.,  R.  Co., 
108  Pa.  St.  529. 

»  Savings  Bank  v.  R.  Co.,  20  Kan- 
sas, 519. 

*  Sioux  City  R.  Co.  v.  First  Nat. 
Bank,  10  Neb.  556. 

*  Coventry  v.  G.  E.  R.  Co.,  11  Q. 
B.  D.  776. 

^  Thurman  v.  Wells,  Fargo  &  Co., 
18  Barbour  (N.  Y.),  500. 

7  Putnam  v.  Tiltotson,  18  Mete  (54 
Mass.)  517. 

8  Pendall  v.  Bench,  4  McLean.  259. 

9  A.  &  T.  R.  R.  Co.  V.  Kidd,  29 
Ala.  221. 

'0  Knapp  V.  U.  S.  &  Canada  Ex- 
press Co.,  55  N.  H.  348;  Hosea  v. 
McCrory,  12  Ala.  349. 

>'  Wabash  &  Western  R.  R.  Co.  v. 
Elliott,  76  111.  67. 

115 


§  172.]  BILLS   OF   LADING.  [CHAP.  XI. 

§  170.  One  who  is  Leld  out  to  the  public  as  the  agent  of 
the  carrier  is  capable  of  making  any  contract  in  regard. to  the 
transportation  of  the  goods  that  the  conijiany  is  able  to  make. 
If  a  person  who  deals  with  a  common  carrier  has  a  right, 
from  the  general  mode  of  conducting  the  company's  business, 
to  rely  upon  the  authority  of  one  of  its  clerks  to  make  a 
general  contract  for  the  goods,  he  has  a  right  also  to  infer  that 
such  authority  includes  a  power  to  contract  to  forward  in  a 
particular  way.^  For  example,  station  agents  are  presumed  to 
have  power  to  contract  for  their  principals  for  transportation 
of  freight.^  A  depot  agent  of  a  railroad  company,  who  receives 
and  forwards  freight,  can  contract  for  that  }>urpose  on  behalf  of 
the  company.^  The  keeper  of  a  coach  office,  who  is  j)art  owner 
of  the  coaches,  may  bind  all  the  owners  by  a  contract  for  its 
support.'*  The  second  clerk  of  the  carrier's  boat  can  bind  his 
employer.'  So  also  can  one  whose  name  is  printed  on  the  bill 
of  lading  as  the  carrier's  transportation  agent*  and  one  who 
keeps  the  keys  of  a  car  chartered  by  the  shipper.^ 

§  171.  One,  however,  who  casually  happens  to  be  the  driver  of 
a  wagon,  w.ho  has  never  before  made  a  contract  for  transporta- 
tion and  who  was  particularly  instructed  not  to  take  any  goods 
for  transportation,  cannot  bind  his  employer^  and  the  servant 
of  one  who  has  formerly  been  a  common  carrier,  but  who  has 
abandoned  the  business,  cannot  bind  his  master  where  he  has 
been  expressly  instructed  not  to  take  goods  for  transport.'  Xor 
can  the  carrier  be  bound  by  the  acts  of  the  person  to  whom  the 
agent,  without  authority,  has  delegated  his  powers."* 

§  172.  A  carrier  can  neither  limit  his  liability  upon  contracts 
'made  by  his  agent,  by  secret  instructions  to  the  agent  limiting 

•  Goodrich  v.  Thompson,  4  Rob.  ^  Kjrkman  v.  Bowman,  8  Robinson 
(N.    Y.)    75;    Rawles     v.    Deshler,     (La.),  246. 

3    Keys    (N.    Y.),    572;    Louisville,  «  B.  &  P.  S.  Co.  v.  Brown,  54  Pa. 

etc.,  R.  Co.  V.  Gilbert,  12  S.  W.  Rep.  St.  77. 

1018.  7  Cent.  R.  R.  &  B.  Co.  v.  Ander- 

2  Pruitt  V.  H.  &  St.  Jo.  R.  R.  Co.,  son,  58  Ga.  393. 

62  Mo.  527.  8  Jenkins     v.     Picket,     9    Yerger 

3  Watson  V.  M.  &  C.  R.  R.  Co.,  9     (Tenn.),  480. 

Heiskell    (Tenn.),    255  ;    Hansen    v.         »  Satterlee  v.  Groat,  1  Wendell  (N. 
Flint,  etc.,  R.  R.  Co.,  73  Wis.  346.         Y.),  272. 

*  Helsby  v.  Mears,  5  B.  &  C.  504.  '«  Pendall  v.  Rench,  4  McLean,  259. 

116 


CHAP.  XI.]      EXECUTION   OR    ACCEPTANCE    OF    THE    BILL.  [§  175. 

the  latter's  authority  when  the  iustructions  are  unknown  to  the 
shipper  ;^  nor  by  a  local  custom  of  which  the  shipper  has  no 
knowledge.2  The  public  cannot  take  notice  of  the  limitatipns 
upon  the  agent's  power,  unless  they  are  conveyed  to  it  in  such 
a  manner  as  to  authorize  the  inference  that  the  shippers  are 
apprised  of  such  limitations.^ 

§  173.  As  has  been  said,  carrier's  agents  are  not  only  author- 
ized to  receive  goods  upon  a  contract  for  transportation  simply, 
but  it  is  within  the  scope  of  their  authority  to  make  special 
contracts  modifying  the  ordinary  relations  between  the  shipper 
and  the  carrier.  Thus,  express  companies'  and  railroad  com- 
panies' agents  may  contract  to  "collect  on  delivery ,"•»  or  to 
deliver  in  covered  cars.* 

§  174.  A  contract  for  the  immediate  delivery  of  goods  made 
by  a  station  agent  binds  the  company,  although  the  agent  had 
no  control  over  the  locomotive  power  of  the  road.«  The  sending 
forward  of  instructions  was  held  to  be  within  the  general  scope 
of  the  forwarder's  business  and  it  was  to  be  presumed  that 
his  clerk  had  authority  to  make  the  contract.'^  If  an  agree- 
ment to  transport  goods  in  a  certain  time  is  within  a  reasonable 
time,  then  it  is  within  the  scope  of  the  employment  of  the 
carrier's  agent  to  make  it  and  binding  on  the  carrier,  but  a 
mere  statement  by  such  agent  of  the  ordinary  time  of  carriage, 
if  honestly  made,  is  not  sufficient  to  show  a  time  contract. » 
N'or  is  the  mere  prondse  of  an  agent,  without  additional  con- 
sideration, to  forward  freight  then  eji  row^e  by  an  earlier  train 
than  was  usual,  binding  upon  the  carrier.^ 

§  175.  An  agreement  made  by  the  ticket  and  passenger  agent 
of  a  railroad  to  watch  for  the  arrival  of  goods  at  one  point  and 
carry  them  to  another,  is  not  within  the  sphere  of  the  agent's 

'    AValker      v.     Sklpwith,     Meigs  '  G.    T.    R.    Co.  v.    Fitzgerald,   5 

(Tenn.),  502.  Duval  (Canada),  204. 

2  Hutchins  V.  Ladd,  16  Mich.  493.  «  Deming  v.   G.  T.   R.  R.  Co.,  48 

3  Pruittw.  H.  &  St.  Jo.  R.  R.  Co.,  N.  H.  455. 

62  Mo.  527.  ^  Hutchings  v.  Ladd,  16  Mich.  493. 

*  Am.  Exp.  Co.  V.  Lesem,  39  111.  «  Strohn  v.  D.  &  M.  R.  R.  Co.,  23 
312;  Nimter  V.  Pacific  R.  R.  Co.,  41     Wis.  126. 

]yio_  5Q3,  9  Railroad  Co.  v.  Reeves,  10  Wal- 

lace (U.  S.  S.  C),  176. 

117 


§  175.]  BILLS    OF   LADING.  [CHAP.  XI. 

employment,  inasmuch  as  a  common  carrier  by  rail  is  not  bound 
by  law  to  watch  for  the  arrival  of  goods  at  the  depots  or  wliarves 
of  pther  carriers  and  transport  them  to  its  own  depots.'  A  mere 
station  agent  has  no  authority  to  contract  for  the  carriage  of 
o-oods  beyond  the  line  of  the  carrier,^  nor  from  a  station  not  on 
the  regular  route.'  Tbe  governing  officers  alone  have  })Ower  to 
make  such  a  contract.*  An  agent  may  not  contract  to  receive 
payment  for  transportation  on  a  credit  to  be  given  by  tlie 
shipper  on  a  demand  against  third  persons.  In  such  a  case, 
where  the  agent  makes  a  contract  upon  terms  which  he  knows 
he  has  no  authority  to  agree  to,  he  makes  himself  personally 
responsible.* 

'  Taylor    v.   Chicago,   N.    W.    Ry.         "  Wart  v.  A.    &   S.    K.    U.    Co.,   5 
Co.,  74  111.  86.  Lansing  (N.  Y.).  475. 

2  Burroughs  v.  N.  &  W.  11.  K.  Co.,         *  Mocch  v.  Smith,  7  WeiiJ.  (N.Y.) 
]00  Mass.  26.  315. 

»  Irwin  V.   N.  Y.  C.  R.  R    Co.,  59 
N.  Y.  (S.  C.)  473. 
118 


CHAP.  XII.]  EXECUTED    BY   MASTER    OF   VESSEL. 


[§  176. 


CHAPTER  XIT. 

BILL  OF  LADING  EXECUTED  BY  THE  MASTER  OF  A  VESSEL. 


Authority  of  the  master  to  sign  bills  of 

lading,  §  176. 
Contract  must  -be  within  the  scope  of 

the  master's  authority,  §  177. 
Secret  instructions  to  the  master  do  not 

bind  the  shipper,  §  178. 
Master  cannot  sign  bills  for  lower  rate 

of  freight  than  the  ship-owner  pon- 

tracted  for,  §  179. 


Master  has  no  authority  to  sign  bills 
for  goods  not  received,  §  180. 

Effect  of  custom  on  this  rule,  §  181. 

Authority  of  ship  broker  to  sign  bills, 
§182. 

Personal  liability  of  the  master  under 
the  bill  of  lading,  §  183. 


§  176.  It  is  presumed  from  the  nature  of  his  employment 
that  the  master  of  a  vessel  which  is  employed  as  a  common  car- 
rier is  authorized  to  make  contracts  for  the  carriage  of  freight.^ 
The  terms  of  a  bill  of  lading,  therefore,  signed  by  the  master, 
constitute  the  engagement  or  contract  of  the  owner,^  wholly  irre- 
spective of  the  question  whether  the  master  is  the  agent  of  the 
general  or  of  the  special  owner.^  It  is  not  necessary  that  the  bill 
should  be  signed  in  the  name  of  the  owniers  for,  while  it  is  the 
general  rule  that  to  make  the  principal  personally  liable  on  a 
written  contract  made  by  his  agent  it  should  be  executed  in  his 
own  name  and  appear  to  be  his  own  contract,  a  bill  of  lading 
signed  by  the  master  in  his  own  name  in  the  usual  course 
of  the  employment  of  the  ship  w^ill  bind  the  owner.^  When 
he  siorns  as  master  of  the  vessel  he  is  resrarded  as  sisrnino;  as  the 
agent  of  the  owners.'  It  is  not  necessary  that  he  should  write 
himself  down  as  "  master"  if  in  fact  he  fills  that  position,  or  if 
he  is  described  in  the  body  of  the  contract  as  the  master.* 

'  Bell    V.    Wood,    1    Dana   (Ky.),  *  McTyer  v.  Steele,  '26  Ala.  487. 

146 ;  Moseley  v.  Lord,  2  Conn.  389.  ^  Slark  v.  Broom,  7  La.  Ann.  Rep. 

*  Ferguson  v.  Cappeau,  6  Harris  &  337. 

Johnson  (Md.),  394.  «  pox  v.  Holt,  36  Conn.  558. 

"  Schr.    Freeman    v.    Buckingham, 
18  Howard,  182. 

119 


§  179.]  BILLS   OF   LADING.  [CIIAP.  XII. 

§  177.  The  contract  must,  however,  be  executed  in  the  usual 
course  of  business  and  it  must  be  within  the  scope  of  the 
master's  authority.  The  mere  fact  that  a  man  is  master  of  a 
vessel  does  not  give  him  authority  to  take  freight  and  sign  bills 
of  lading.  Every  vessel  is  not  a  common  carrier  and  to  bind 
the  owners  by  a  contract  of  affreightment  the  vessel  must  be 
engaged  in  the  freighting  business.  Tlie  master,  therefore, 
of  a  vessel  which  had  been  sent  by  the  owner  to  carry  a  cargo 
on  the  latter's  own  account,  cannot  bind  the  owner  by  a  bill  of 
lading.^  The  authority  of  the  master  can  be  either  express 
or  implied  from  custom  and  tlie  usual  course  of  business,  or 
from  subsequent  assent.  Tlie  shipper  has  the  right  to  infer 
that  one  occupying  the  position  of  master  of  a  vessel  engaged  as 
a  common  carrier  has  the  power  to  contract  for  the  carriage  of 
goods,  in  the  absence  of  information  to  the  contrary.  The 
receipt  of  compensation  for  carriage  on  previous  occasions  for 
goods  similarly  shipped  is  strong  evidence  of  the  authority  of 
the  master  to  act  .as  the  carrier's  agent.^ 

§  178.  Any  secret  instructions  by  the  owner  of  which  the 
shij^per  has  no  notice,  inconsistent  with  the  authority  with 
which  the  master  appears  to  be  clothed,  will  not  affect  third 
persons^  but  the  authority  of  the  master  is  limited  by  the, 
custom  of  the  carrier  where  that  custom  is  known  to  the  ship- 
per and  the  master  cannot  make  the  owner  liable  for  the  loss 
of  money  carried  contrary  to  the  custom  and  without  the  con- 
sent of  the  owner.*  Where,  however,  a  custom  exists  to  carry 
a  particular  article  (as  money)  a  receipt  by  the  master  binds 
the  owners  and  the  latter  are  liable  for  the  money  if  lost.® 

§  179.  The  master  of  a  ship  has  no  authority  to  sign  bills  of 
lading  for  a  lower  rate  of  freight  than  the  owner  has  contracted 
for,^  nor  has  he  power  under  his  general  authority  to  draw  bills 
of  lading  making  the  freight  payable  to  any  other  than  the 

'  Nichols  V.  De  Wolf,  1  R.  I.  27  7.  "  Chouteau  v.  St.  Anthony,  11  Mo. 

^  Witbeck  v.  Schuyler,  44  Barbour  226.     ' 

(N.  Y.),  469.  5  Hosea  „^  McCrory,  12  Ala.  349; 

"  Schooner    Freeman   v.    Bucking-  Garey  v.  Meagher,  33  ib.  630. 

ham,  18  Howard,  182  :   Allen  v.  Sew-  ^  Pickernell  v.  Janberry,  3  F.  &  F. 

all,  2  Wend.  (N.  Y.)  327.  (C.  P.  Encr.)  217. 
120 


CHAP.  XII.]  EXECUTED   BY    MASTER   OF   VESSEL.  [§  181. 

owner,  as  for  example,  to  the  agents  of  the  charterers  who  have 
advanced  money  to  the  master  for  the  ship's  use.^      _ 

S  180    The  master  of  a  ship  is  estopped  as  agamst  a  con- 
sic^nee  who  is  not  a  party  to  the  contract   and  as  against  a 
co'nsicrnee  of  the  bill  of  lading  (when  either  has  taken  it  lor  a 
valuable   consideration   upon  the  faith  of  the  acknowledged 
agreements  which  it  contains)  to  deny  the  truth  of  the  state- 
ments to  which  he  has  given  credit  by  his  signature  so  tar  as 
these  statements  relate  to  matters  which  are  or  ought  to  be 
within  his  knowledge.     When  he  is  acting  within  the  limits  ot 
his  authority  the  owners  are  estopped   in  like   manner  with 
him  but  the  master  of  a  sliip  has  no  authority  to  sign  a  bill 
of  lading  for  goods   not  actually  put  on  board.     Such  an  act 
would  be  a  fraud  on  his  part.     Therefore  the  owner  ot  a  ship 
is  not  responsible  to  parties  taking  or  dealing  with  or  makmg  ad- 
vances on  the  faith  of  an  instrument  which  is  untruthful  m  this 
particular.^     When  a  captain  has  signed  bills  of  lading  tor  a 
caro'o  that  is  actually  on  board  his  vessel   his  power  is  ex- 
hausted, he  i^  functus  officio  and  he  has  no  right  or  power,  by 
sio-ning  other  bills  for  the  same  quantity  of  goods  (no  more 
being  put  on  board)  even  though  he  suppose  the   first  bills 
destroyed,  to  charge  the  owners.^  ^ 

§  181.  Where  by  a  custom  bills  of  lading  were  signed  by  a 
master  before  the  goods  were  received  by  the  ship,  it  was  held 
that  the  bills  must  be  considered  as  conditional  and  only  bind- 
ing in  the  event  of  the  goods  being  really  delivered  to  the  boat 
subsequently.*     Where  the  bill  of  lading   is   signed   by  the 

.  Reynokls  ..   Jex,  7  B.  &  S.  86;  Allen   (85   Mass.),    103;    Fellows    v. 

34  L   J    Q   B    251.  Steamer  P.  W.  Powell,  16  La.  Ann. 

2  Grant  v.  Norway,  10  C.  B.  665;  Rep.  316;    Fearn   ..   Richardson     12 

Meyer  v.  Dresser,  16  C.  B.  N.  S.  657  ;  ib.  752  :   Hunt  v.  Miss.  Cent.  R.  Co 

Zipsy  ..  Hill,  Foster  &  Finlason,  573  ;  29  ib.   446  ;   Kirkman  ..   Bowman    8 

Hubbersty  ..  Ward,  8  Exch.  330;  18  Rob.  (La.)   246;  Beard  ..  Steele,  34 

Eng.    L.    &    Eq.    551;     Coleman    v.  U.   C.   Q.   B.  43;  The   Sarogossa,   2 

Ridies,  16  C.  B.  104  ;   Schooner  Free-  Ben.  544. 

man,   18    How.   187;    Friedknder   ..  «  Hubbersty  ..  Ward   8  Exch.  330; 

Texas,etc.,R.R.Co.,130U.S.424;  22  L.J.  Exch.  113;  Tindal  ..  Tay- 

Bark    Edwin,   1   Sprague,   477;    The  lor,  4  El.  &  Bl.  219. 

Loon,  7  Blatchford  (C.  C),  244  ;  Bal-  *  Fearn  v.  Richardson,  12  La.  Ann. 

timore  &  Ohio  R.  R.  Co.  v.  Wilkins,  Rep.  752. 
44    Md.    11;     Sears    v.    Wingate,    3 


§  183.]  BILLS   OF   LADING.  [CHAP.  XII. 

master  prior  to  the  shipping  of  the  goods,  the  subsequent  de- 
livery of  the  goods  to  the  sliip,  if  clogged  by  a  condition,  will 
not  bind  the  vessel.  Thus,  in  the  case  of  the  "John  K.  Sha\v,"i 
the  master  of  a  canal-boat  signed  n  blank  bill  of  lading  for 
grain  and  gave  it  to  the  charterer,  who  filled  it  up  and  nego- 
tiated it.  The  grain  was  subsequently  put  on  board  under  an 
agreement  that  the  title  should  not  pass  to  the  charterer  until 
it  was  paid  for.  The  grain  was  not  paid  for  and  was  delivered 
to  the  order  of  those  who  put  it  on  board.  The  court  held  that 
the  vessel  was  not  liable  to  the  holder  of  the  bill  of  lading. 

§  182.  A  ship's  broker  at  a  foreign  port  has  no  authority  to 
relieve  the  master  from  the  duty  of  seeing  to  the  accuracy  ot 
statements  contained  in  the  bill  of  lading  which  he  presents  to 
him  for  signature^  and  a  bill  of  lading,  signed,  by  a  ship's 
broker  in  a  foreign  port  "by  authority  of  the  captain,"  is  not 
conclusive  against  the  ship's  owners.^ 

§  183.  The  master  is  personally  liable  upon  all  bills  of  lading 
which  he  has  authority  to  make.  It  is  said  that  the  holder  of 
a  bill  of  lading  has  a  remedy  in  admiralty  against  the  master 
on  his  undertaking,  or  personally  against  the  owners  of  the 
vessel,  or  against  the  vessel  in  rem,  where  the  goods  shipped 
on  board  are  not  delivered.^  The  master  is  also  personally 
liable  on  all  bills  of  lading  made  in  excess  of  his  authority,  on 
the  general  principle  that  an  agent  renders  himself  personally 
liable  where  he  makes  a  contract  upon  terms  which  he  knows 
he  has  no  authority  to  agree  to,  although  the  contract  be  made 
in  the  line  of  his  business  as  agent.*  The  master's  liability  may  be 
released  by  the  shippers  as  in  the  case  of  Hall  v.  Ship  Chaplain,^ 
where  a  quantity  of  iron  was  delivered  to  the  captain  of  a  vessel 
for  shipment.  The  shippers  signed  a  paper  in  which  they  declared 
that,  in  consideration  of  the  captain  having  signed  their  bills  of 
lading  without  a  clause  for  a  part  of  the  iron  being  a  little  rusty, 
they  exonerated  him  from  any  loss  arising  from  his  so  signing. 

'  ^-  Fed.  Rep.  491.  4  Schr.    Leonidas,    Olcott    (D.    C. 

^  Stumore  v.  Breen,  L.  R.  12  App.     N.  Y.),  12. 
^^^-  ^^8-  '  Meech  v    Smith,    7   Wendell  (N. 

'  Thorman  v.  Burt,  54  L.  T.  N.  S.     Y.),    315;    Bell    v.    Wood,    1    Dana 
^^^-  (Ky.),  146. 

^  9  Louisiana,  318. 

122 


CHAP.  XIII.]  EXCEPTIONS.  [§  184. 


CHAPTER   XIII. 

KXCEPTIONS-EXPRESSIO  UNIUS  EST  EXCLUSIO  ALTERIUS 
—ACT  OF  GOD. 

Expressio  miius,  etc.,  §§  1 84,  1 85.  Act  of  God  and  negligence  concurring, 

Expressio  unius,  etc.,  case  of  Gage  v.  §  194. 

Tirrell,  §  18G.  Amount  of  care  necessary,  §  195. 

Expressio   unius,    etc.,    general    rule,  Act    of    God    and    delay   concurring, 

§  187.  §  196. 

Act  of  God— Definitions,  §§  188,  189.  Deviation  and  act  of  God  concurring, 

Act  of  God— Losses  within  the  excep-  §§  197,  198. 

tion,  §§  190-191.  Consent  of  shipper  to  deviation,  §  199. 

Act   of  God— Losses    not   within    the  Duty  to  protect  goods  after  damage  by 

exception,  §  192.  act  of  God,  §  200. 

Act   of    God,    the    proximate    cause.  Act  of  God— Inevitable  accident,    §§ 

§193.  201,202. 

§  184.  A  QUESTION  of  some  importance  in  the  construction  of 
the  terms  of  a  bill  of  lading  which  contains  certain  specified 
exceptions  to  the  carrier's  liability,  but  omits  those  which  the 
common  law  allows  for  his  beneiit  (viz  :  the  act  of  God  and  the 
public  enemy),  is  whether  the  expressed  exceptions  do  not  ex- 
clude the  implied  ones  in  accordance  with  the  maxim  exjjressio 
unius  est  exdusio  alterius. 

In  an  early  case  in  England  the  question  was  raised,  but  re- 
mained unanswered, — the  cause  never  having  proceeded  to  final 
judgment.^      In  the  case  of  Scaife  v.  Tarrant,^  the  defendant 

'  In    Bever    v.    Tomlinson,   Easter  of  the  ship  being  struck  by  the  vessel 

Term,  36  Geo.   III.  (cited  in  Abbott  of  an  enemy  during  the  time  of  war. 

on  Shipping,  Pt.  IV.,  ch.  vi.,  p.  386,  It  was  doubted  whether  a  loss  so  occa- 

5th  ed.,  and  in   Story  on  Bailments,  sioned  was  within  the  meaning  of  this 

§  550),  the  bill  of  lading  contained  an  exception. 

exception  only  of  the  perils  of  the  sea        ^  23  W.  R.  469  ;  2  Cent.  L.  J.  383. 

and  the  foods  were  lost  in  consequence  On  appeal,  the  judgment  of  the  court 

123 


§  185.]  BILLS    OF   LADING.  [CIIAP.  XIII. 

made  a  special  contract  to  carry  certain  fiirnitiire  from  Paio-iiton 
to  Plymouth  with  ''  risk  of  breakages  in  transit."  The  goods 
were  destroyed  by  fire  during  transit  by  rail.  The  defendant 
was  not  a  common  carrier.  He  undertook  for  one  particular 
risk  only  and  did  not  stipulate  to  be  liable  for  anything  else. 
The  court  decided  that  he  could  not  be  held  liable  for  a  loss  bv 
fire  and  that  the  general  rules  applied  to  this  special  contract 
made  between  the  parties,  viz:  '' expressio  unius  est  exdasio 
alterius"  and  ^'-  expressum  facit  cessare  tacitam.'' 

AVhere  the  carrier,  under  the  terms  of  his  contract,  becomes 
the  absolute  insurer  of  goods  during  carriage,  a  loss  occasioned 
by  the  act  of  God  or  the  jfublic  enemy  will  not  relieve  him 
from  liability,  though  he  does  not  specially  stipulate  to  be 
liable  for  such  losses.*  If,  however,  there  is  no  warranty  of  safe 
delivery,  he  will  not  be  liable  for  a  loss  by  the  act  of  God,  even 
where  he  contracts  to  carry  the  goods,  stipulating  the  "  damao-e 
or  deficiency  in  quantity  specified,  if  any,  to  be  deducted  from 
charges  by  the  consignees."  In  order  to  extend  his  liability 
for  such  a  loss,  there  must  be  an  express  agreement,  unequivo- 
cally and  necessarily  evincing  that  such  was  the  intention  of 
the  parties.^ 

The  parties  ai-e  presumed  to  contract  with  reference  to  the 
responsibilities  which  the  common  law  injposes  ut)on  the  carrier 
in  ordinary  cases.  If  the  goods  were  destroyed  by  the  act  of 
God  or  the  public  enemy  before  the  time  for  delivering  them  ex- 
pired (the  carrier  having  agreed  to  deliver  the  goods  within  a 
prescribed  time),  this  would  excuse  the  carrier  on  his  special 
contract.^ 

§  185.  In  Fish  v.  Chapman,'*  a  wagoner  contracted  to  deliver 
certain  packages  ''  in  good  order  and  condition,  unavoidable 
accidents  only  excepted."  The  court  held  that  the  exception 
of  unavoidable  accidents  excluded  all  other  exceptions  and  that 
if  the  goods  had  been  destroyed  by  the  public  enemy  he  would 

below  was  affirmed.     23  \V.  R.  840  ;  2  2  Price  v.  Hartshorne,  44  N.  Y.  94. 

Cent.  L.  J.  605.  3  Strohm  v.  Detroit  &  Milwaukee 

1  Gaither  v.  Barnet,  2  Brevard  (S.  R.  R.  Co.,  23  Wis.  126. 

C),  p.  488.  4   2  Ga.  349. 

124 


CHAP.  XIII.]  EXCEPTIONS.  [§  186. 

have  been  liable.  The  defendant  was  held  liable  as  a  common 
carrier  on  his  special  contract.  This  case  was  decided,  how- 
ever, upon  the  ground  that  the  accident  which  occasioned  the 
loss  (the  upsetting  of  a  wagon  on  a  decayed  bridge)  was  not  an 
unavoidable  accident. 

In  the  application  of  this  maxim  much  depends  upon  the 
intention  of  the  parties  and  the  law  does  not  imply  the  exemp- 
tion from  liability  where  the  circumstances  show  that  the 
parties  intended  that  it  should  not  be  implied.  In«Pennsyl- 
vania  it  has  been  held  that  these  circumstances  may  be  shown 
by  parol  evidence'  and  in  Connecticut  it  has  been  said  that 
common  carriers  are  not  liable  for  losses  by  the  act  of  God 
whether  the  bill  of  lading  contains  any  exception  of  them  or 
not.^ 

§  186.  This  subject  has  been  elaborately  discussed  in  the 
case  of  Gage  v.  Tirrel.^  In  that  case  perils  of  the  sea  were 
specially  excepted  and  it  was  attempted  to  hold  the  carrier 
liable  for  a  loss  arising  from  the  act  of  the  public  enemy.  It 
was  said  by  the  court,  that  "  the  only  safe  mode  of  applying 
the  rule  is  to  ascertain  whether  it  can  be  fairly  presumed, 
from  that  which  is  expressly  stipulated,  that  the  matter  sought 
to  be  excluded  was  present  to  the  minds  of  the  parties  when 
the  ao-reement  was  entered  into.  The  exclusion  can  reason- 
ably  extend  no  further  than  to  shut  out  all  implied  agreements 
and  stipulations  of  the  same  nature,  or  relating  to  similar  mat- 
ters." "  Indeed,  it  may  be  said  generally,  that  the  maxim  expres- 
sum  facit  cessare  taciturn  is  never  to  be  applied  in  the  construc- 
tion of  contracts  peremptorily  and  absolutely,  so  as  to  exclude 
from  the  contract  everything  not  embraced  in  the  stipulations 
of  the  parties.  Its  legitimate  and  proper  use  is,  to  shut  out 
implied  agreements  on  the  same  or  similar  subjects  as  those 
concerning  which  the  contract  speaks.  Even  such  exclusion 
should  be  extended  only  so  far  as  to  subserve  the  plain  intent 
of  the  parties." 

The  expressed  exception  in  this  case  included  other  risks 

'  Morrison  y.  Davis  &  Co.,  8  Harris,  ^  Williams  v.  Grant,  1  Conn.  487, 
171.  492  ;   Crosby  v.  Fitch,  12  ib.  410. 

3  9  Allen,  299  (Mass.). 

125 


§  188.]  BILLS   OF   LADING.  [CIIAP.  XIII. 

than  those  comprehended  within  tlie  class  denominated  as  the 
acts  of  God.  Perils  of  the  seas  embrace,  not  only  inevitable 
accidents,  but  many  other  occurrences  to  the  happenini^  of 
which  human  agency  directly  contributes  and  which  are  not 
included  in  the  expression  act  of  God,  for  which  the  carrier  is 
not  liable  at  common  law.  It  was  held,  therefore,  that  losses 
arising  from  perils  of  the  sea  are  entirely  distinct  and  diverse 
and  have  no  necessary  connection  with  or  relation  to  those 
arising  from  the  acts  of  the  public  enemy.  They  belong  to 
entirely  different  kinds  or  classes  of  risks  and  no  inference  can 
be  reasonably  drawn  from  the  exemption  of  the  carrier  by  a 
special  agreement  from  one  class  or  kind,  that  it  was  the  in- 
tention of  the  parties  that  he  should  assume  the  other  for 
which  the  law  would  not  hold  him  liable,  if  there  had  been  no 
exception  inserted  in  the  contract. 

§  187.  It  may,  therefore,  be  generally  stated  that  the  expres- 
sion of  any  exception  to  the  carrier's  liability  in  the  bill  of 
lading  will  not  exclude  the  implied  exceptions,  viz.,  the  act  of 
God  and  the  public  enemies,  but  the  expression  of  one  of  the 
implied  exceptions,  viz.,  either  the  act^  of  God  or  the  public 
enemy,  both  being  of  the  same  class  or  kind,  would  raise  a  pre- 
sumption that  both  were  present  to  the  minds  of  the  parties  at 
the  time  of  the  making  of  the  contract  and  in  accordance  with 
the  maxim  expressio  iiniiis  est  exdasio  aUerius,  the  omitted 
exception  would  be  excluded. 

§  188.  The  exception,  loss  by  "  Act  of  God,"  though  im- 
plied in  every  contract  for  carriage  is  nevertheless  among 
the  exceptions  usually  expressed  in  bills  of  lading.  There 
are  not  wanting  numerous  cases  defining  the  phrase.  These 
definitions  are  in  the  main  consistent  and  clear.  Act  of  God 
is  described  as,  "  the  violent  act  of  nature,"'  "  inevitable  acci- 
dent without  the  intervention  of  man,"^  "such  accidents  as 
are  inevitable  by  the  care  of  man,"^  "  lightning,  tempest,  and 
other  natural  causes  beyond  human  control,"''  "  a  natural  neces- 

'  Friend  v.  Woods,  6  Gratt.  (Va.)         s  -q^^  ^^  ^^^^^^  ^  gj^^^    ^p.^^  J2_^ 

^^^-  *  Pennewill     v.     Cullen,     5     Han. 

2  Mc Arthur  v.  Seare,  21  Wend.  (N.     (Dec.)  238. 
y.)  190. 

126 


CHAP.  XIII.]  EXCEPTIONS.  [§  189- 

Bity  which  could  not  have  been  occasioned  by  the  intervention 
of  man,  but  which  proceeds  from  physical  causes  alone,'"  "all 
misfortunes  and  accidents  arising  from  the  inevitable  necessity 
whichhuman  prudence  could  not  foresee  or  prevent."^  Chief 
Justice  Kent,  in  Elliott  v.  Rossell,^  defines  the  phrase  as  "  in- 
evitable necessity  not  arising  from  the  intervention  of  man 
which  human  prudence  could  not  have  avoided."* 

A  certain  ambiguity  has,  however,  crept  into  the  use  of  the 
phrase  by  the  suggestion  of  Sir  William  Jones  in  his  treatise 
on  Bailments,''  that  the  words  "  inevitable  accident"  be  sub- 
stituted in  its  stead,  as  bemg  more  reverent  and  more  exactly 
expressing  the  meaning  of  the  common  law.  This  has  led  in 
some  quarters  to  an  extension  of  the  meaning  of  the  exception 
and  it  is  not  uncommon  to  find  in  the  books  act  of  God  de- 
fined by  such  phfases  as  the  following:  "  Casus fortuitus,''^  "all 
unavoidable  accidents,"^  "  inevitable  accidents."^  In  Brusseau 
V.  The  Hudson,^  it  is  said  that  the  phrase  is  the  equivalent  of 
"  the  accidental  and  uncontrollable  events"  of  the  Louisiana 
code.  In  what  sense  and  to  what  extent  such  terras  are  iden- 
tical with  the  phrase,  "  The  Act  of  God,"  is  elsewhere  con- 
sidered. 

§  189.  The  definition  given  by  Mr.  Justice  Brett  in  a  recent 
English  case  includes  "  such  direct,  violent,  sudden,  and  irre- 
sistible acts  of  nature  as  could  not,  by  any  amount  of  ability, 
have  been  foreseen,  or,  if  foreseen,  could  not,  by  any  amount  of 
human  care  and  skill,  have  been  resisted."'"  Mr.  Lawson,  in 
his  treatise  on  Contracts  of  Carriers,  having  first  explained 
that  "any  amount  of  ability"  and  "any  amount  of  human 
care   and    skill"    mean  only    reasonable    skill    and  reasonable 

'  Ferguson  v.  Brent,  12  Md.  9.  «  Brusseau  v.  Ship  Hudson,  11   La. 

2  Williams  i;.  Grant,  1  Conn.  487.  Ann.  Rep    427. 

3  10  Johns.  1.  7  Walpole    v.    Bridges,    5    Bkckf. 
*  See  also  Merrit  v.  Earle,  29  N.  Y.  (Ind.)  222. 

115;   Merchants'  D.  Co.  v.  Smith,  76  «  Neal  v.   Landerson,  2  Sm.   &  M. 

111.    642;    Chevallier   v.    Straham,    2  (Miss.)  572;   Robertson  v.  Kennedy, 

Texas,  115;   Chapin  v.  Chicago,  etc.,  2  Dana  (Ky.),  430. 

R'y    Co.    (Iowa),    44    N.    W.    Rep.  ^  11  La.  Ann.  Rep.  427. 

g.2Q_  10  Nugent  v.  Smith,  1   L.  R.   C.  P. 

6  Jones  on  Bailments,  §§  104,  105.  Div.  19.     • 

127 


§  189.]  BILLS    OF   LADING.  [CIIAP.  XIII. 

diligence,  adopts  this  as  "a  correct  exposition  of  the  law 
both  in  England  and  America."^  It  may,  however,  be  fairly 
questioned  whether,  under  the  decisions,  the  act  of  nature  need 
be  sudden  and  irresistible.  It  will  hereafter  be  seen  that  there 
are  cases  in  the  books  in  which  acts  of  nature,  certainly  not 
violent  and  sometimes  not  even  sudden,  have  been  decided  to 
come  under  the  exception  and  although  the  better  opinion 
would  seem  to  be  that  the  more  radical  of  these  decisions  are 
erroneous  they  cannot  be  wholly  disregarded. 

A  more  exact  definition  is  that  arrived  at  by  Mr.  Justice 
Hare  after  an  elaborate  consideration  of  the  cases,  in  a  note  to 
Coggs  V.  Bernard  in  Smith's  Leading  Cases  -^  "  I  apprehend  that 
the  true  notion  of  the  exception  is  those  losses  that  are  occa- 
sioned exclusively  by  the  violence  of  nature,  by  that  kind  of 
force  of  the  elements  which  human  ability  could  not  have  fore- 
seen or  prevented,  such  as  lightning,  tornadoes,  sudden  squalls 
of  wind.  If,  however,  it  does  not  necessarily  mean  only  the 
violence  of  nature,  it  certainly  is  restricted  to  the  act  of  nature 
and  implies  the  entire  exclusion  of  all  human  agency,  whether 
of  the  carriers  or  of  third  persons."  To  this,  however,  there 
may  be  added  the  statement  that  the  unquestioned  tendency  of 
the  more  recent  decisions  is  to  limit  the  application  of  the  phrase 
to  the  extraordinary  violence  of  nature. 

In  this  connection  it  is  to  be  remarked  that  it  is  not  necessary 
in  order  that  a  phenomenon  fall  within  the  rule  that  it  should 
happen  for  a  first  and  only  time.  In  a  recent  English  case,  where 
the  damage  was  by  an  exceedingly  high  tide,  it  was  argued 
that  this  cause  could  not  be  considered  the  act  of  God,  inasmuch 
as  it  had  been  shown  to  be  not  without  precedence.  This  fact 
was  held  to  be  immaterial  and  it  was  said  that  it  was  enough 
that  the  tide  was  extraordinary  and  such  as  could  not  reason- 
ably have  been  anticipated.^ 

'  La-vvson  on  Contracts  of  Carriers,  the  loss  was  by  flood,  the  fact  that  the 

§  4.  water  was  high  beyond  precedent  is 

2  Vol.  I.,  Pt.  I.,  p.  423  (edition  of  laid  stress  on.     This  fact  is  clearly  of 

1885).     See  cases  cited.  importance    in    determining   whether 

"  Nitro-Phosphate,  etc.,  Co.  v.  Dock  the  loss  could  have  been  prevented  by 

Co.,  9  L.  R.  Ch.  Div.  503.  reasonable    foresight   on    the   part   of 

In   Nashville,    etc.,  R.    R.   Co.    v.  the    carrier   and,  so    be   without    the 

David  C,  Heisk.  (Tenn.)  261,  where  exception,    but    the    general    law    is 

128 


CHAP.  XIII.] 


EXCEPTIONS. 


[§  190. 


§  190.  The.  following  have  been  held  to  be  losses  by  the  act 
of  God:  the  destruction  of  goods  by  lightning,  loss  by  tornado, 
by  earthquake,'  by  storra,^  by  sudden  squall,^  loss  caused  by  the 
sudden  rising  of  a  river,*  by  flood,'  by  an  extraordinary  tidal 
wave,®  by  an  extraordinary  tide,^  loss  by  snow-storm  by  ob- 
structing the  passage  of  trains,^  by  the  freezing  of  navigable 
waters,'  by  the  freezing  of  the  goods  themselves,*"  loss  caused 
by  exceedingly  high  wind,"  by  stress  of  weather  or  inclemency 
of  the  season,'''  loss  by  the  driving  of  a  boat  against  a  bridge 
pier  in  a  sudden  gust  of  wind.'^  In  Colt  v.  McMechin'*  it  ap- 
peared that  a  vessel  had  been  beating  up  the  Hudson  against  a 
light  and  variable  wind  and  being  near  shore  while  changing 
her  tack,  the  wind  suddenly  ceased,  in  consequence  of  which 


correctly  stated  above,  that  the  mere 
fact  of'a  plu'iiomenon  having  happened, 
or  not  having  happened  before,  will 
not,  of  itself,  and  in  the  absence  of 
evidence  of  negligence,  either  bring 
the  cause  under  or  take  it  out  of  the 
efi'ect  of  the  exception. 

'  Formard  v.  Pittard,  1  T.  R.  27. 

2  Morrison  v.  Davis,  20  Pa.  St. 
171. 

^  Amies  v.  Stevens,  1  Str.  127; 
Oakley  v.  Portsmouth,  etc.,  Co.,  25  L. 
J.  Ex.  99. 

*  Harris  v.  Rand,  4  N.  H.  259 ; 
Norris  v.  Savannah  R.  Co.,  1  South. 
Rep    475. 

*  Wallace  v.  Clayton,  42  Ga.  443  ; 
Nashville,  etc.,  R.  R.  Co.  r.  David  C, 
Heisk.  (Tenn.)  261  ;  Lamont  v.  Nash- 
ville, etc.,  R.  R.  Co.,  9  Heisk.  (Tenn.) 
68;  Lovering  v.  Buck  Md.  Coal  Co., 
54  Pa.  St.  291  ;  Read  v.  Spaulding, 
5  Bosw.  (N.  Y.)  395  ;  Memphis,  etc. 
R.  R.  Co.  V.  Reeves,  10  Wall.  176; 
Davis  V.  Wabash  &  R.  Co.,  89  Mo. 
340. 

«  The  Thomas  Newton,  41  Fed. 
Rep.  106. 

^  Nitro-Phosphate,  etc.,  Co.  v.  Dock 
Co.',  9  L.  R.  Ch.  Div.  603. 
9 


*  Bridden  v.  Great  Northern  R.  W. 
Co.,  28  L.  J.  Exch.  51  ;  Ballentine  v. 
Northern  Missouri  R.  R.  Co.,  40  Mo. 
491  ;  Ritz  V.  Pennsylvania  R.  R.  Co., 
3  Phila.  82;  Pruitt  v.  Hannibal,  etc., 
R.  R.  Co.,  62  Mo.  527. 

^  Parsons  v.  Hardy,  14  Wend.  (N. 
Y.)  215;  Harris  v.  Rand.,  4  N.  H. 
259  ;  West  v.  The  Berlin,  3  Iowa, 
532;  The  Maggie  Hammond,  9  Wall. 
435;  Worth  v.  Edmonds,  52  Bart. 
(N.  Y.)  40;  Amies  v.  Stevens,  1  Str. 
127;  Bowman  v.  Teall,  23  Wend. 
N.  Y.  306. 

'"  Nicholas  v.  New  York  C,  etc.,  R. 
R.  Co.,  4  Hun  (N.  Y.),  327;  Vail  v. 
Pacific  R,  R.  Co.,  63  Mo.  230;  Pitts- 
burgh, etc.,  R.  R.  Co.  V.  Hazen,  84 
111.  36. 

1'  H.  &  T.  C.  R.  R.  Co.  V.  Haines, 
44  Tex.  628 ;  Amies  v.  Stevens,  1 
Strange,  127. 

12  West  V.  The  Berlin,  3  la.  532; 
Illinois  Cent.  R.  R.  Co.  v.  Owens, 
53  111.  39  ;  Brown  v.  Lamont,  30  Up- 
per Canada,  2  B.  392. 

1'  Germania  Ins.  Co.  v.  The  Lady 
Pike,  17  Am.  Law  Reg.  (O.  S.)  614; 
S.  C.  2  Bissell,  141. 

1*  6  Johns.  (N.  Y.)  160. 

129 


§  191.]  BILLS   OF   LADING.  [CIIAP,  XIII. 

she  ran  aground  and  sank.  The  sudden  failure,  of  the  wind 
was  held  by  the  Court  to  be  the  act  of  God.  Where  the  goods 
have  been  jettisoned  in  a  violent  storm  under  justifying  cir- 
cumstances the  loss  is  within  the  exception.' 

§  191.  Coming  now  to  cases  of  more  doubtful  authority  the 
following:  have  been  also  declared  to  be  losses  bv  the  act  of 
God:  the  unavoidable  breaking  down  of  a  sled,''  damage  done 
by  founderous  roads,^  by  a  high  wind  blowing  a  forest  fire.* 
There  are  not  wanting  cases  in  which  it  is  intimated  that  any 
misfortune  or  accident  that  ccRild  not  be  averted  by  the  skill 
and  prudence  of  the  carrier  is  within  the  exception,'  but  it  is 
worthy  of  remark  that  many  of  these  cases  have  been  specifi- 
cally overruled  and  others  substantially  departed  from  by  the 
later  decisions. 

The  striking  of  a  ship  upon  a  rock  not  generally  known  to 
mariners,^  or  upon  a  snag  recently  lodged  in  the  channel  of  a 
river,  has  been  said  to  be  a  loss  by  the  act  of  God.^  In  Penne- 
wnll  V.  Cullen^  the  distinction  is  made  that  if  the  rock  or  shoal 
upon  which  the  vessel  struck  was  hitherto  not  known  the  Mas- 
ter is  excused,  but  if  it  was  known  or  laid  down  on  any  chart 
it  does  not  fall  within  the  exception.  This  cannot  be  given, 
however,  as  a  correct  statement  of  the  law.  In  Friend  v. 
Woods,^  decided  in  the  same  year,  the  stranding  of  a  vessel  on 
a  bar  previously  unknown  is  expressly  held  to  be  without  the 
exception  and  this  may  be  considered  as  more  in  the  line  of 
the  recent  decisions.'" 


1  Bird  V.  Astcock,  2  Bulst.  280;  (S.  C.)  178,  overruled  by  McClena- 
Gillet  V.  Ellis,  11  111.  579;  Johnston  ghan  i'.  Brock,  5  Rich.  Repts.  (S.  C.) 
r.  Crane,  1  Kerr  (N.  B.),  356 ;  Price  17  (1851);  see  also  Harrington  v. 
V.  Hartshorne,  44  N.  Y.  94  ;  Warren  Syles,  2  Nott.  &  JNIcC.  (S.  C.)  88 
r.  Wilson,  6  Upper  Canada,  2  B.  (O.  (1819);  Patton  v.  Magrath,  Dudley 
S.)  435.  (S.  C),  159. 

2  Moses  V.  Non-is,  4  N.  H.  304.  «  Williams  v.  Grant,   1   Conn.  487; 

3  Boyle  V.  McLoughlin,  4  H.  &  J.  Steele  v.  McTyer,  31  Ala.  667. 
(Md.)  291.  7  Smyrl  v.  Niolan,   2  Bail.  (S.  C.) 

*  Penna.  R.  R.  Co.  v.  Fries,  87  Pa.  421. 

St-  234,  235.  8  5  Harr.  (Del.)  238. 

^  Hays  V.  Kennedy,  41  Pa.  St.  378 ;  ^  6  Gratt.  189. 

Walpole  V.  Bridges,  5  Blaekf.  (Ind.)  i"  Redfield  on  Gamers,  §  151,   and 

222 ;  Ereleigh   v.   Sylvester,    2  Brev.  cases  cited. 
130 


CHAP.  XIII.]  EXCEPTIONS.  [§  192. 

The  recent  Englisli  case  of  :N"ugent  v.  Smith  is  of  interest. 
Here  the  action  was  for  the  vaUie  of  a  mare  the  loss  of  which  had 
resulted  from  injuries  brought  on  partly  by  the  tossing  of  the 
ship  in  which  she  was  being  transported  and  partly  by  fright. 
The  Court  below  held  that  this  was  not  attributable  to  the  act 
of  God,— Mr.  Justice  Bkett  defining  the  term  in  the  language 
already  quoted,  but  the  Court  of  Appeal  overruled  the  Court 
below  and  held  that  such  a  loss  properly  falls  within  the  excep- 
tion.^ 

§  192.  A  loss  by  fire  not  caused  by  lightning  is  not  within 
the  exception,^  nor  does  it  affect  the  question  of  liability  that 
the  flames  have  been  carried  a  great  distance  or  diverted  from 
their  previous  track  by  an  extraordinary  wind,"  nor  that  the 
conflagration  is  one  of  unusual  extent,  as  the  great  Chicago 
fire,*  nor  that  the  fire  is  started  on  board  a  steamboat  by  the 
bursting  of  the  boiler*  or  was  originated  by  the  machinery ,« 
nor  that  the  loss  occurred  on  the  high  seas.^ 

Explosion  is  not  the  act  of  God,^  nor  is  collision,^  even  if 
unavoidable,  nor  are  railroad  accidents,^''  nor  is  the  breaking  of 
tackle  or  machinery,'^  nor  a  defect  in  the  rudder  of  a  vessel,'^  nor 
the  breaking  of  a  chain  thought  to  be  sound, '^  nor  the  bursting 
of  a  cask  containing  chloride  of  lime,'*  nor  is  a  heavy  fall  of  rain,'^ 

'  1  L.  R.  C.  P.  Div.  19  and  423.  ^  Raisted  v.  Boston,  etc.,  S.  N.  Co., 

2  Forward  v.  Pittard,  1  T.  R.  27  ;  27  Me.  132  ;  The  Propeller  Mohawk, 
Patton  V.  Magrath,  Dudley  (S,  C),  8  Wall.  153  ;  Mershon  v.  Hobensack, 
159;  ,Cox  V.  Peterson,  30  Ala.  608.  2  Zabr.   (N.  J.)    380;    cotUra,  Law- 

3  Miller  v.  Steam  Nav.  Co.,  10  N.  rence  v.  McGregor,  1  Wr.  Ch.  (O.) 
Y.  431;      Chevallier   v.    Straham,    2  193. 

Texas,  115;  Parsons  v.  Monteath,  13  ">  Illinois  Cent.  R.  R.  Co.  v.  Owens, 

Barb.  (N.  Y.)  353.    But  see  R.  R.  Co.  53  111.391. 

V.  Fries,  supra.  ''  P>e  Moet  v.  Laraway,  14  Wend. 

4  Merchants  Dispatch  Co.  v.  Smith,  (N.  Y.)  225. 

76  111.  542.  ^^  Backhouse  v.  Sneed,  Murph.  (N. 

5  McCall  V.  Brock,  5  Stroth  (S.  C),     C.)  173. 

119_  13  Central  Line  of  Boats  v.  Lowe,  50 

6  Hale  V.  New  Jersey  S.  N.  Co.,  15    Ga.  509. 

Conn.  539.  ^*  Brousseau  v.  Ship  Hudson,  11  La. 

■^  Same  v.  same,  supra.  Ann.  Rep.  427. 

8  Houston,  etc.,  Nav.  Co.  v.  Dwyer,  ^^  Klauser  v.  Express  Co.,  21  Wise. 

29  Texas,  376  ;  Bulkley  v.  Naumkeag  21.     But  see  McHenry  v.  P.  W.  &  B. 

Steam  Cotton  Co.,  24  Horr.  386.  R.  R.  Co.,  4  Harr.  (Del.)  448. 

131 


193.] 


BILLS   OF   LADING. 


[chap.  XIII. 


nor  tlie  rising  of  waves  caused  by  the  stopping  of  a  vessel,'  nor 
the  running  against  a  vessel  capsized  in  a  storm,'  nor  the  run- 
ning against  a  sunken  anchor  in  the  river  over  wliicli  a  huoy 
formerly  was,^  nor  the  shifting  of  a  buoy,*  nor  the  rolling  of 
the  vessel'  nor  mistaking  a  light,*  nor  the  formation  of  a  bar 
in  the  river,^  nor  running  against  a  known  rock  in  a  fog,^  nor 
running  upon  a  snag,"  nor  running  aground,'"  nor  runiiing  upon 
a  piece  of  timber  not  visible  at  ordinary  tides,"  nor  the  sinking 
of  a  vessel  at  her  wharf  while  undergoing  repairs,'^  nor  the 
escape  of  water  through  the  pipe  of  a  steam  boiler  cracked  by 
frost,  the  boiler  having  been  filled  before  the  time  of  heating  it." 
An  extraordinarily  low  tide  which  interferes  with  the  progress 
of  a  carrier  by  water,  though  perhaps  the  act  of  God,  is  not 
such  ill  the  sense  of  being  an  excuse  for  the  carrier.  A  carrier 
may,  without  liability,  delay  until  the  adverse  winds  and  dan- 
gers from  the  low  tide  have  passed  away,  but  if  he  sails  he 
takes  the  risk  of  dangers  from  such  causes.'* 

§  193.  The  accident,  to  come  within  the  exception,  must  be 
directly  due  and  traceable  to  the  act  of  God."»  Where  the 
proximate  cause  of  the  loss  was  some  cause  other  than  the  act 


'  Oakley      v.      Portsmouth,     etc., 
Packet  Co.,  11  Exch.  617. 

2  Merritt    v.  Earle,   31   Barb.    (N. 
Y.)  38. 

'  Proprietors    Trent    Nav.    Co.    v. 
Wood,  3  Esp.  127. 

*  Reaves  v.  Waterman,    2    Spear's 
Rep.  (S.  C.)  197. 

^  The  Reeside,  2  Sumner,  567. 
«  McArthuru.  Sears,  21  Wend.  (X. 
Y.)  190;  but  mistaking  a  light  with- 
out accompanying  negligence  is  within 
the  exception  perils  of  the  sea.     The 
Juniata;    Paton  v.  Bliss,  1  Bissell,  15. 
'  Friend  v.  Woods,  6  Gratt.  (Va.) 
189. 
8  Fergusson  v.  Brent,  12  Md.  9. 
^  Eveleigh  v.  Sylvester,  2  Brev.  (S. 
C.)  1 78.    Reversed  in  McClenaghan  v. 
Brock,  5  Rich.  (S.  C.)  17. 

w  S.    S.    Co.    V.   Bason,   Harp.  L. 
Reps.  (S.  C.)  262. 

132 


"  New  Brunswick  S.  N.  Co.  v. 
Tiers,  24  N.  J.  (Law),  697  ;  Bohan- 
non  V.  Hammond,  42  Cal.  227. 

12  Packard  v.  Taylor,  35  Ark.  402. 

13  Buller  V.  Fisher,  Peake's  Ad.  Cas. 
K.  B.  183.  See  Siordet  v.  Hall,  4 
Bing.  607. 

'*  Boyle  V.  McLaughlin,  4  H.  &  J. 
(Md.)  291 ;  Collier  v.  Swinney,  16  Mo. 
484;  Silver  v.  Hall,  2  Mo.  App. 
557. 

'5  Merril  v.  Earle,  31  Barb.  (N.  Y.) 
38;  S.  C.  affirmed.  29  N.  Y.  115: 
Sprowl  V.  Kellar,  4  Stew.  &  P.  (Ala.) 
382 ;  Ewart  v.  Street,  2  Bailey  (S. 
C),  157;  King  u.  Shepherd,  3  Story, 
349.  In  AVolf  v.  American  Express 
Co.,  43  Mo.  421,  the  law  is  more  se- 
verely stated.  It  is  there  said  that 
the  act  of  God  must  be  not  the 
proximate  but  also  the  sole  cause  of 
loss. 


CHAP.  XIII.]  EXCEPTIONS.  [§  194. 

of  God,  the  carrier  is  not  relieved  by  the  exception  and  con- 
versely where  the  proximate  cause  was  the  act  of  Gotl,  the 
Court  will  not  inquire  into  the  remote  cause.^  The  maxim  is, 
causa  jwoxima  non  remota  spectatar.^ 

Where  several  causes  have  combined  to  produce  loss,  one  of 
which,  though  not  the  immediate  cause,  was  the  act  of  God, 
the  carrier  is  not  exonerated  under  this  exception.^  Thus, 
where  a  steamboat  in  the  night  ran  against  the  mast  of  the  sloop 
sunk  in  a  squall  two  days  before,  the  carrier  was  held  liable,— 
the  loss  being  the  result  of  mixed  causes  and  not  the  immediate 
result  of  natural  forces  alone."  So  where  a  vessel  ran  aground 
in  a  storm,  the  master  having  mistaken  the  light,  the  storm 
was  held  to  be  causa  remota.^ 

Where,  however,  the  real  cause  of  loss  was  the  violent  act  of 
nature,  the  mere  fact  that  negligence,  delay,  or  deviation  has 
been  shown,  will  not  render  the  carrier  liable.  Thus,  the  mere 
fact  of  the  employment  of  a  pilot  without  skill  will  not  rebut 
the  conclusion  of  the  exemption  of  the  carrier  from  liability, 
unless  it  be  shown  that  the  loss  resulted  from  this  fact.^ 
The  feilure  to  forward  goods  promptly  will  not  render  the  car- 
rier liable  for  a  loss  proximately  caused  by  the  act  of  God.'^ 
Even  negligence  is  immaterial  w^here  it  has  contributed  to  loss 
only  as  a  remote  cause.* 

§  194.  Ordinarily,  however,  the  negligence  of  the  carrier  will 
take  the  loss  out  of  the  exception  or,  to  state  the  matter  more 
accurately,  where  the  loss  is  attributable  to  the  act  of  God  and 
the  neglect  of  the  carrier  concurring,  the  carrier  is  liable.^  Thus, 
the  act  of  God  cannot  be  urged  successfully  as  a  defence  when  an 

1  Memphis,    etc.,     R.    R.    Co.    v.  ">  Lament  v.  N.  &.  C.  R.  R.  Co.,  9 

Reeves,  10  Wall.  196.  Heisk.  (Tenn.)  58. 

'  Same,  supra.  '  Memphis,    etc.,     R.     R.     Co.    v. 

8  N.  B.  S.  &  C.  Trans.  Co.  v.  Tiers,  Reeves,    10  Wall.    176  ;    Hoadley  v. 

4  Zabr.    (N.  J.)    697;     Fergusson  v.  Trans.  Co.,  115  Mass.  304. 

Brent,  12  Md.  9.  ^  Williams  v.  Grant,  1   Conn.  487  ; 

*  Merrit  y.  Earle,  31  Barb.  (N.Y.)  Brooke   v.    Pickwick,  4   Bing.    218; 

33_                                '  Read  v.  Spalding,  5  Bosw.   (N.   Y.) 

5  McArthur  v.  Sears,  21  Wend.  (N.  395  ;  Brodenliam  v.  Bennett,  4  IMce, 
Y.)  190.  31 ;  Birkett  v.  Willan,  2  B.  &  A.  356  ; 

6  Hart   V.    Allen,   2   Watts    (Pa.),  Smith  v.  Horn,  2   Mo9re,   18 ;   S.  C. 
114  8  Taunt.  144. 

133 


§  195.]  BILLS   OF   LADING.  [CHAP.  XIII. 

unsea worthy  vessel  has  been  lost  at  sea' or  where  the  loss  is  due 
to  bad  loading  as  well  as  to  the  wind,'^  or  where  a  ship  is  set  on 
fire  by  a  cargo  of  lime  being  wetted  during  a  storm,  the  ship 
havino;  necessarily  deviated  from  her  course,'  or  where  the 
carrier  negligently  allowed  the  goods  to  remain  on  the  wharf 
and  they  were  destroyed  by  storm,*  or  where  a  buggy  was 
blown  from  a  car  by  violent  wind,  it  not  being  clear  that  it 
bad  been  securely  fastened,*  or  where  the  carrier,  a  ferryman, 
started  to  cross  the  river  when  a  dangerous  wind  was  blowing,' 
or  where  a  wagon  attempted  to  cross  a  swollen  stream  with  an 
insufficient  team.' 

Bad  packing  of  the  goods  shipped  will  prevent  the  act  of  God 
being  set  up  successfully  as  a  defence.  If  the  injury,  however, 
may  be  attributed  as  well  to  the  one  cause  as  to  the  other,  the 
carrier  will  not  be  liable.^ 

The  carrier  is  bound  to  exercise  proper  foresight  and  pru- 
dence in  anticipating  the  act  of  God,  to  exert  the  proper  means 
for  meeting  and  overcoming  it  and  to  use  due  diligence  in  ac- 
complishing the  transportation  as  soon  as  it  ceases  to  ojterate 
and  in  protecting  the  goods  against  further  loss  if  left  in  a 
damaged  or  exposed  condition.' 

§  195.  The  question  naturally  occurs:  "What  amount  of  pru- 
dence, foresight  and  skill  must  the  carrier  use  in  order  to  have 
the  advantage  of  the  exception  ?    In  Briddon  v.  Great  Northern 

'  Belli;.  Read,  4  Binn.  (Pa.)   127.     Co.    v.    Morehead,    5   W,    Va.    293; 

*  Spencer  v.  Daggett,  3  Vt.  92.  Memphis,  etc.,  R.  R.  Co.  v.  Reeves, 
»  Davis  y.  Garrett,  6  Bing.  716.  10    Wall.    176;     Peck    v.   Weeks,   34 

*  Morgan  v.  Dibble,  29  Texas,  108;  Conn.  152;  Lament  v.  R.  R.  Co.,  9 
McHenry  v.  P.  W.  &  B.  R.  R.  Co.,  Ileisk.  (Tenn.)  58;  Tuckerman  v. 
4  Harr.  (Del.)  448.  Trans.   Co.,  3   Vroom  (N.  J.),  320  ; 

«  H.  &  T.  R.  AV.  Co.  V.  Hano,  44  AVallace  v.  Clayton,  42  Ga.  443  ;  The 

Texas,  628.  Maggie    Hammond,     9    Wall.    435 ; 

«  Cook   V.  Gourdin,  2   Nott.  &  M.  Dibble    v.    Morgan,    1    AVoods,    406 ; 

(S.  C.)  19.  Read  v.  Spalding,  5    Bosw.  (N.  Y.) 

'  Campbell  v.  Morse,  Harp.  L.  R.  395  ;    Morgan   v.    Dibble,    29    Texas, 

468.  107  ;   Harmony  v.  Bingham,  12  N.  Y. 

8  Muddle    V.  Stride,    9  Car.   &  P.  99;     Shieffelin   v.    Harvey,  6    Johns. 

380.  (N.  Y.)  170;    Feinberg   v.  D.  L.  & 

3  Bowman    v.    Teale,     23    AVend.  W.  R.  R.  Co.  (N.  J.),  20  Atl.  Rep. 

(N.  Y.)  306  ;  Baltimore,  etc.,  R.  R.  33. 

134 


CHAP.  XIII.]  ,    EXCEPTIONS.  [§  196. 

Railway  Co.,^  it  is  said  that  extraordinary  efforts  may  be  required 
of  him.  In  ]N"ugent  v,  Sriiith,^  already  cited,  it  is  said  that  the 
exception  included  such  acts  of  nature  as  the  defendant  could 
not  "  by  any  amount  of  ability  foresee"  or  if  he  could  foresee 
"  could  not  by  any  amount  of  care  and  skill  resist."  Chief 
Justice  CocKBURN  in  reversing  the  judgment  of  the  lower  court 
in  this  case,  states  the  law  more  reasonably,  thus :  "All  that 
can  be  required  of  the  carrier  is,  that  he  shall  do  all  that  is 
reasonably  and  practically  possible  to  insure  the  safety  of  the 
goods.  If  he  uses  all  the  known  means  to  which  prudent  and 
experienced  carriers  ordinarily  have  recourse,  he  does  all  that 
can  reasonably  be  required  of  him  and  if  under  such  circum- 
stances, he  is  overpowered  in  storm  or  other  natural  agencies, 
he  is  within  the  rule  which  gives  immunity  from  the  effects  of 
such  vis  major  as  the  act  of  God." 

§  196.  Mere  delay  unaccompanied  by  negligence  on  the  car- 
rier's part  will  not  defeat  his  defence  under  this  exception  where 
goods  were  frozen  during  a  delay  caused  by  the  violence  of  a 
mob.'  With  respect  to  negligent  delay,  however,  the  decisions 
are  conflicting.  The  rule  in  some  States  would  seem  to  be  that 
mere  delay  of  itself  is  too  remote  a  cause  to  be  regarded  in 
connection  with  the  loss.  This  is  the  effect  of  the  case  of 
Railroad  Co.  v.  Reeves,^  in  the  Supreme  Court  of  the  United 
States  and  of  the  ruling  in  Massachusetts®  and  in  Pennsylvania.^ 
In  Kew  York,^  in  Missouri^  and  in  Nebraska'  the  reverse  has 
been  held. 

In  Michigan  Central  Railroad  Co.  v.  Curtis,'"  the  Supreme 
Court  of  Illinois  have  gone  even  farther  in  holding  that  where 
fruit  trees  were  delayed  so  long  by  one  carrier  that  they  were 

1  28  L.  J.  (Exch.)  Rep.  51.  ^  Read  v.  Spalding,  30  N.  Y.  630; 

2  Section  191.  Michaels  v.  New  York  Central  R.  R. 

3  Pittsburgh,  etc.,  ^R.  R.  Co.  v.  Co.,  ib.  564.  (See  opinion  of  Davies, 
Hazen,  84  111.  36.  J.,  578.) 

*  10  Wall.  176.  8  Vail  v.  Pacific  R.  R.  Co.,  63  Mo. 

6  Denny  v.  New  York  Central  R.  R.  230. 

Co.,  13  Gray  (Mass.),  481  ;   Hoadley  ^  Dictum  in  McClary  v.  Sioux  City, 

V.  Northern   Trans.    Co.,    115   Mass.  etc.,  R.  R.  Co.,  3  Neb.  44. 

304.  ^^  80  111.  324. 

8  Morrison  v.  Davis,  20  Pa.  St.  171. 

135 


§  197.]  BILLS   OF    LADING.  [CIIAP.  XIII. 

frozen  in  the  hands  of  the  connecting  carrier  and  it  was  im- 
possible to  save  them,  the  first  carrier  could  be  held  for  the 
loss. 

In  Browne  on  Carriers,  the  law  is  thus  stated:  "If  he  (tlie 
carrier)  delays  an  unreasonably  long  time  on  the  journey  and 
it  is  proved  that  but  for  such  an  unreasonable  waste  of  time 
he  would  have  been  able  to  deposit  his  goods  in  safety,  it  will 
not  be  a  good  defence  to  an  action  for  the  amount  of  injury 
done  to  the  goods  of  an  owner  who  intrusted  them  to  him  to 
be  carried  to  say,  that  the  injury  was  caused  by  a  flood  which 
was  the  act  of  God."' 

§  197.  Deviation  lias  been  defined  as  any  unnecessary  or  un- 
excused  departure  from  the  usual  or  general  mode  of  carrying 
on  the  voyage.*  It  has  been  repeatedly  held  that  where  the 
loss  ensues  from  such  negligent  act  of  the  carrier,  coupled  with 
the  act  of  God,  the  carrier  is  liable.'  Tiie  deviation  is  to  be 
regarded  as  the  proximate  cause  of  the  loss.* 

It  has  been  said  that  necessity  can  sanction  deviation  and 
this,  though  inconsistent  with  the  definition  here  adopted,  is 
in  principle  the  accei)ted  law,  but  ap})lies  only  so  far  as  the 
necessity  exists  and  will  not  authorize  a  deviation  incommen- 
surate "  with  the  vis  major  producing  it.'"'  The  necessity  must 
be  real  and  not  supposititious  and  the  burden  of  proving  the 
necessity  rests  with  the  carrier.* 

The  rule  applies  to  carriers  by  land  as  well  as  to  carriers  by 
water.^  It  is  deviation  for  the  carrier  having  contracted  to  carry 

^  Browne   on   Carriers,  §  95.     See  Ga.  617;  Maghee  v.  Camden,  etc.,  R. 

also,  Bonanno  v.   Boskenna    Boy,   36  R.    Co.,   45    N.    Y.    514;    Angell  on 

Fed.   Rep.  697;    Blodgett  v.  Abbott,  Carriers,  §§  203,  204. 

72  Wis.   516;    S.   C.  40  N.  W.  Rep.  *  Story  on  Bailments,  §413. 

491.  6  Maryland    Ins.    Co.    v.    Levy,    7 

"  15  Am.   L.   Rep.   108;    Bond  v.  Cranch,  26. 

The  Cora,  2  Pet.   Adm.  373  ;   Coffin  «  Hand  v.  ^aynes,  4  Whart.  (Pa.) 

V.  Newburyport  Ins.  Co.,  9  Mass.  436.  204  ;  Le  Sage  v.  Great  Western  R.  R. 

3  Lawrence    v.   McGregor,    1    Wr.  Co.,  1  Daly,  306;   Ackley  y.  Kellogg, 

Ch.  (O.)   193;    Crosby  v.   Fitch,   12  8  Cow.  (N.  Y.)  223. 

Conn.  410;   Davis  u.  Garrett,  6  Berry,  ^Powers     v.     Davenport,     supra; 

716;   Powers  v.  Davenport,  7  Blackf.  Lawrence  v.  McGregor,  supra;  Phil 

(Ind.)  497;    Phillips  v.  Bingham,  26  lips  v.  Bingham,  supra. 

136 


[chap.  XIII.  EXCEPTIONS.  §  198.] 

goods  by  rail  to  take  them  by  water,i  or  having  contractecl  to 
convey  them  by  sailing  vessel ,2  to  ship  them  by  a  steamship,  or 
having  contracted  to  c^rry  them  by  canal,  to  take  them  out  to 
sea.3  The  necessary  crossing  of  a  ferry  is  not  deviation,  but  m 
Mashee  v.  Camden,  etc.,  Railroad  Co.,"  where  the  bill  of  lading 
contained  the  words  "  all  nwil"  and  the  goods  were  sent  from 
Indianapolis  to  N'ew  York,  by  rail  to  Amboy  and  by  boat 
from  Amboy  to  New  York,  a  distance  of  twenty  miles,  histead 
of  by  the  more  direct  route  by  way  of  Jersey  City,  this  was 
held  to  be  deviation. 

As  a  general  rule,  it  may  be  said  that  where  a  particular  Ime 
of  ships,  or  even  a  particular  ship,  is  nominated  in  the  bill  of 
lading,  it  is  deviation  for  the  carrier  to  ship  by  any  other." 
"The  skill  and  experience  of  the  master  of  the  boat,  the 
character  is  approved,  and  the  stanchness  and  speed  of  the 
boat  may  all  be  taken  into  consideration  by  the  owner  or 
shii)pcr  of  goods  in  selecting  a  boat  for  the  carriage  of  his  goods. 
Having  done  so,  he  has  a  right  to  require  that  the  contract  be 
fulfilled  in  the  manner  agreed,  unless  the  master  of  the  boat 
reserves  the  privilege  of  reshipping."^ 

§  198.  An  interesting  case,  though  not  one  strictly  within 
the  letter  of  the  exceptions  under  consideration,  is  that  of  Bazin 
V.  Liverpool,  etc.,  S.  S.  Co.^  The  bill  of  lading  contained  the 
words,  "  received  in  and  upon  the  steamship  called  Shamrock, 
now  in  the  port  of  Havre  and  bound  for  Liverpool,  18  cases 
of  merchandise  to  be  transshipped  at  Liverpool  on  board  the 
Liverpool  and  Thiladelphia  steamship  City  of  Manchester  or 
other  steamship  appointed  to  sail  for  Philadelphia  on  Wednes- 
day, the  5th  day  of  Sept.,  and  failing  shipment  by  her,  then  by 
the  first  steamship  sailing  after  that  date  for.  Philadelphia." 
The  exceptions  included  loss  by  "  accidents  on  the  sea."     The 

•  Bostwick  V.Baltimore,  etc.,  R.R.  «  Dunseth   v.    Wade,    2    Scammon 

Co.,  45  N.  Y.  717  ;  Maghee  v.  Cam-  (111.),   285  ;    Goddard  v.  Mallory,  52 

den,  etc.,  R.  R.  Co.,  supra;  Ingalls  Barb.  (N.  Y.)   87;  Johnson  v.  New 

V.  Brooks,  Ed.   Sel.  Cas.  104.  York  Central  R.  R.   Co.,   33   N.   Y. 

2  Merrick  v.  Webster,  3  Mich.  268.  610,  reversing  31   Barb.  (N.  Y.)  196. 

3  Hand  v.  Bayues,  4  Whart.  (Pa.)  «  2  Scammon  (111.),  285. 
204.  '  3  Wall.,  Jr.,  229. 

«  45  N.  Y.  514. 

137 


§  199.]  BILLS    OF   LADING.  [CHAP.  XIII. 

2;oods  arrived  at  Liverpool  some  time  prior  to  the  Gth  of  Sept., 
and  another  of  defendant's  steamships,  the  City  of  Philadelphia, 
sailing  in  the  meanwhile,  part  of  the  goods  were  shipped  in 
her  and  part  retained  and  sent  by  the  City  of  Manchester.  The 
City  of  Philadelphia  was  wrecked  and  the  goods  sent  by  her 
lost.  The  defendants  urged  that. the  custom  of  the  trade  was 
to  forward  goods  as  soon  as  possible  and  that  there  was  no 
reason  for  the  plaintiffs  specifying  the  City  of  Manchester  as 
the  steamship  by  which  the  goods  were  to  be  forwarded.  The 
court  held  that  the  plaintiff  was  not  bound  to  disclose  a  reason  ; 
that  he  was  entitled  to  have  the  contract  of  the  bill  of  lading 
fulfilled  according  to  its  stipulation  and -that  the  carrier,  by 
shipping  the  goods  by  another  vessel,  had  virtually  made  him- 
self an  insurer  of  their  safety. 

The  carrier  is  bound  to  deliver  the  goods  to  the  connecting 
carrier  indicated  in  the  bill  of  lading.  If  he  deliver  them  to 
any  other,  this  is  such  deviation  on  his  part  as  will  make  him 
liable  for  any  loss  in  the  subsequent  transit.  JSTo  stipulations 
against  liability  beyond  his  own  line  will  have  the  effect  of  re- 
lieving him.'  If  he  is  unable  to  forward  them  by  the  carrier, 
or  even  by  the  boat  indicated,  he  should,  if  possible,  wait  for 
further  instructions  from  the  shipper.^  In  Johnson  v.  New 
York  Central  R.  R.  Co.,  the  goods  were  billed  to  be  forwarded 
via  "  People's  Line"  from  Albany.  On  arriving  at  Albany,  the 
People's  Line  refused  to  receive  them  and  they  were  forwarded 
by  another  company.  The  case  was  heard  in  the  Supreme  Court 
and  decided  for  the  defendant,  but  on  appeal  to  the  Court  of 
Appeals,  this  ruling  -was  reversed  and  the  railroad  company 
held  liable.^ 

§  199.  Where  the  shipper  has  consented  to  the  deviation, 
the  carrier  is  relieved  from  liability.  In  Hendricks  v.  The 
Morning  Star,*  it  was  shown  that  although  the  bill  of  lading 

'  Fatman  v.  Cincinnati,  etc.,  E..  R.  the  goods  having  been  destroyed  by- 
Co.,  2  Disney,  248.  a  hostile  cruiser.     In  this  connection, 

2  Fisk    V.    Newton,    1   Denio,    45 ;  see  Harris  v.  Rand,  4  N.  H.  259,  the 

Goodrich  v.  Thompson,  44  N.  Y.  324.  authority  of  which,  however,  is  ques- 

^31  Barb.  196.  tioned  by  Mr.  Lawson  in  his  work  on 

*  18  La.  Ann.  Rep.  353.  Here  the  loss  the  Contracts  of  Carriers,  §  143. 
was  occasioned  by  the  public  enemy, 

138 


CHAP.  XIII.]  EXCEPTIONS.  [§  200. 

nominated  a  certain  vessel,  the  shipper  had  consented  to  the 
substitution  of  another  of  the  same  line  and  that  the  goods 
were  shipped  in  her  and  were  lost.  The  court  held  the  carrier 
discharged.  It  would  seem  the  consent  of  the  owner  may  in 
certain  cases  be  assumed.  Indeed,  where  the  deviation  is  neces- 
sary to  preserve  the  goods,  the  carrier  not  only  may,  but  must 
deviate.^  Thus,  in  Harmony  v.  Bingham,^  where  the  goods 
were  billed  to  be  sent  by  a  canal,  which  was  found  to  be  im- 
passable, by  reason  of  freshet,  it  was  held  that  the  act  of  God 
could  not  be  set  up  as  an  excuse,  inasmuch  as  the  goods  could 
have  been  forwarded  by  another  route. 

§  200.  Where  a  loss  or  damage  has  been  caused  by  act  of 
God,  it  is  the  duty  of  the  carrier  to  make  all  proper  effort 
to  prevent  further  injury.  He  is  liable  for  the  safe  custody  of 
the  goods  in  their  damaged  condition.  The  amount  of  dili- 
gence required  in  such  an  emergency  is  to  be  determined  by  the 
same  rules  as  those  applicable  under  other  circumstances.  He  is 
bound  to  use  actively  and  energetically  such  means  to  save  the 
goods  as  prudent  and  skilful  men  engaged  in  that  business 
might  be  fairly  expected  to  use  under  like  circumstances,  but 
not  necessarily  "  all  the  diligence  that  human  sagacity  can  sug- 
gest."3 

What  are  such  means  depends  upon  the  circumstances  of 
each  case.  Thus,  where  a  package  containing  furs  had  been 
wetted  by  storm,  the  court  said  that  it  was  the  carrier's  duty 
to  have  had  it  opened  and  the  goods  dried,*  but  where  peaches 
were  being  carried  by  rail  and  a  bridge  of  the  railroad  having 
been  washed  away  by  freshet,  it  was  impossible  to  forward 
them  and,  as  they  showed  signs  of  decay,  they  were  sold,  the 
carrier  was  held  exonerated  from  responsibility  for  their  loss." 
The  rule  under  consideration  is  but  an  application  of  the  gene- 

'  The  INIaggie  Hammond,   9   Wall,  ley,  16Vt.  48;  AVallace  u.  Clayton,  42 

430  ;   Williams  v.  Vanderbilt,   28  N.  Ga.  443  ;  Read  v.  Spalding,  5  Bosw. 

Y.    217  ;   Sager  v.    Portsmouth,  etc.,  (N.  Y.)  395;  Gait  v.  Archer,  7  Gratt. 

R.  R.  Co.,  31  Me.  228.  (Va.)  307. 

2  12  N.  Y.  99.  *  Chouteaux  v.  Leech,   18  Pa.  St. 

3  Nashville,    etc.,    R.    R.    Co.    v.  224. 

David,  6  Heisk.  (Tenn.)  201  ;  Craig        *  American  Express  Co.  v.   Smith, 
y.  Childress,  Peck,  270;   Day  v.  Rid-     33  Ohio  St.  511. 

139 


§  202.]  BILLS   OF   LADING.  [CHAP.  XIII. 

ral  pi-inciple  of  the  carrier's  responsibility  for  the  results  of 
his  own  negligence. 

§  201.  The  general  phrase  "  inevitable  accident"  (or  "  unavoid- 
able accident")  is  sometimes  inserted  in  bills  of  lading.  In  some 
of  the  cases  this  is  construed  as  being  the  exact  equivalent  of  act 
of  God,*  while  another  line  of  cases  seems  to  assert  that  it  has 
a  somewhat  dift'erent  meaning.'  Said  Chief  Justice  Lowrie, 
of  Pennsylvania,  in  Hays  v.  Kennedy  :'  "  We  are  quite  satisfied 
that  the  weight  of  authority  and  of  reason  shows  that  the  ordi- 
nary exceptions  in  a  bill  of  lading  of  unavoidable  accidents  have 
a  much  larger  sphere  than  that  which  is  attributable  to  the  term 
act  of  God." 

§  202.  If  the  former  of  these  classes  of  cases  is  to  be  followed 
the  exception  under  consideration  in  no  way  shifts  the  common 
law  liability,^  but  if  the  latter,  its  meaning  is  more  difficult  to 
determine. 

In  a  Georgia  case"  it  is  said  that  though  unavoidable  accident 
is  distinguishable  from  act  of  God  there  must  be  in  it  an  irre- 
sistible vis  major,  so  that  the  breaking  of  an  iron  rod  because 
of  a  secret  flaw  in  it  is  not  unavoidable  accident,  but  is  negli- 
gence on  the  part  of  the  carrier.  So  also,  fire'  and  theft^ 
have  been  held  not  to  come  within  the  exception,  but  the 
damage  by  breaking  of  a  dam  in  a  canal  is  excusable  on  this 
ground.^ 

In  Spence  v.  Chadwick,'  an  English  ship  had  on  her  voyage 

'  Neal  V.  Sanderson,  2  Sm.   &  M.  1   Woods,   406;  Hall  v.   Cheney,  36 

(Miss.)  572;  Moses  v.  Norris,  4  N,  N.  H.  26. 

H.  304.     But  see  Hall  v.  Cheney,  36  ^  41  ^.^    st.  378. 

N.  H.   26  ;  Fish  v.   Chapman,  2  Ga.  *  Walpole    v.    Bridges,    5    Blackf. 

349;  Walpole  v.  Bridges,    5  Blackf.  (Ind  )  222. 

(Ind.)  222  ;  Lawrence  v.  McGregor,  ^  Central  Line  of  Boats  v.  Lowe,  50 

1    Wr.  Ch.  (O.)   193;  Brousseau   v.  Ga.  509. 

The  Hudson,  11  La.  Ann.  Rep.  427;  ^  Merchants'  D.   Co.    v.  Kahn,    76 

Boyce    v.     Anderson,     2    Pet.     150;  111.  520;   Miller  v.  Steam  Nav.   Co., 

Merchants'  D.  T.  Co.   v.   Smith,    76  13  Barb.  (N.  Y.)  361. 

111.      542;     Fowler      v.     Davenport,  ^  Kemp    v.    Coughtry,    11    Johns. 

21  Texas,   626  ;   Seligman  v.  Armiyo,  (N.  Y.)  107. 

1  New  Mexico,  459.  s  Morrison   v.    McFadden,    Penna. 

2  McArthur  v.  Lears,  21  AVend.  (N.  L.  J ;   5  Clark,  23. 

Y.)  190;  Central    Line  of  Boats    v.  »  10  A.  &  E.   (N.   S.)  517;  S.  C. 

Lowe,  50  Ga.  509;  Dibble  y.  Morgan,  16  L.J.  Q.  B.  313. 

140 


CHAP.  XIII.]  EXCEPTIONS.  [§  202. 

touched  a  Spanish  port  and  there  certain  goods  on  board  had 
been  confiscated  as  contraband,  having  been  condemned  by  a 
competent  court  under  the  laws  of  Spain.  The  bill  of  lading 
incUide'd  the  exceptions  "act  of  God,  all  and  every  other 
dangers  and  accidents  of  the  seas,  rivers,  and  navigation  of 
what  nature  and  kind  soever."  It  was  held  that  the  loss  was 
by  none  of  these,  but  by  inevitable  necessity,  against  which 
the  carrier  ought  to  have  provided  by  contract. 

141 


§  203.] 


BILLS   OF   LADING. 


[chap.  XIV. 


CHAPTER  XIV. 

EXCEPTIONS  Continued— ACCIDENTS  OF  MACHINERY- 
BARRATRY— COLLISION. 


"  Accidents  of  machinery,"  etc., 
§§  203,  204. 

"  Barratry  ;"  definition,  §  205. 

Acts  held  to  be  barratrous,  §§  206, 
207,  208. 

Barratrous  act  must  be  prejudicial  to 
owner,  §  209. 

Master  who  is  also  owner  cannot  com- 
mit barratry,  §  210. 


Act  of  part-owner  may  be  barratrous. 

§211.    . 
"Collision;"  conditions  under  which 

it  may  arise,  §§212,  213. 
Duty  to  protect  goods  after  collision, 

§214. 
Collision    not  presumptively    due   to 

negligence,  §  21  5. 


§  203.  Causes  of  loss,  such  as  "  accidents  of  machineiy — of 
boiler — of  engine — of  steam,"  are  without  the  common  law 
exception,  "  the  act  of  God. "^  Whether  thej  are  included  within 
the  phrase  "  perils  of  the  sea"  is  not  altogether  clear.'  The  ex- 
pression of  such  exceptions  in  the  bill  of  lading  is  perhaps 
advisable,  but  certainly  it  adds  no  immunity  from  liability 
where  the  carrier  has  been  guilty  of  negligence.  In  Czech  v. 
General  Steam  Navigation  Company^  it  appeared  that  in- 
jury had  been  done  to  goods  by  oil  from  a  donkey  engine 
used  in  raising  and  lowering  the  cargo,  near  which  they  had 
been  negligently  stowed.  The  exceptions  in  the  bill  of  lading 
included  "  damage  by  machinery."  It  was  said  that  the  car- 
rier must  nevertheless  answer  for  the  results  of  his  own  negli- 
gence. So  where  it  appeared  that  loss  had  been  occasioned 
by  steam  escaping  through  a  crack  in  the  boiler  of  a  steamship 


^  DeMoet   v.   Laraway,   14  Wend.  How.  386 ;  Hale   i'.    Steam    Naviga- 

(N.  Y.)  225;  Central  Line  of  Boats  tion  Co.,  15  Conn.  539. 

V.  Lowe,  50  Ga.  509  ;  Navigation  Co.  ^  Laurie  v.  Douglas,    15  M.  &  W. 

V.  Dwyer,  29  Tex.  376;  Bulkley  v.  746. 

Naumkeag    Steam    Cotton    Co.,     24  ^  37  l_  j^  C.  P.  3  ;  S.  C,  L.  R.  3  ; 

C.  P.  14. 
142 


CHAP.  XIV.]  EXCEPTIONS.  [§  204. 

and  that  the  boiler  had  cracked  by  reason  of  having  been 
allowed  to  remain  over  night  filled  with  water,  when  not  in 
use  and  in  very  cold  weather.  This  the  court  said  was  negli- 
gence and  the  carrier  was  held  liable.^  Ordinarily,  however, 
the  leaking  of  a  boiler  by  which  goods  are  injured,  where 
negligence  by  the  carrier  cannot  be  shown,  is  within  the  excep- 
tion.^ The  phrase  "  damage  from  machinery"  will  not  cover  a 
loss  caused  by  the  breaking  of  tackle  used  to  discharge  cargo. 
The  word  machinery,  it  has  been  said,  includes  only  the 
machinery  by  which  the  vessel  is  propelled.^ 

§  204.  The  exception,  however,  does  contemplate  salvage 
services  rendered  necessary  by  the  breaking  of  such  propelling 
machinery  upon  the  high  seas. 

In  the  Miranda^  the  bill  of  lading  included  among  the  ex- 
cepted perils  the  phrase  "accidents  of  the  machinery."  The 
vessel  on  which  the  goods  were  being  transported  injured  the 
crank  shaft  of  her  engine  and  was  towed  into  harbor  by  an- 
other vessel  belonging  to  the  same  owners.  The  action  was  for 
salvage  by  the  owners,  master  and  crew  of  the  Roxana,  the 
latter  vessel,  against  the  owners  of  the  cargo  of  the  Miranda, 
the  former  vessel.  It  was  held  that  the  plaintiffs  were  entitled 
to  recover,  notwithstanding  the  fact  that  the  owners  of  the 
Roxana  were  also  owners  of  the  Miranda,  and  that  the  defend- 
ants could  not  throw  off  their  liability  upon  the  carrier,  inas- 

•  4  Bing.  607;  S.  C.  6  L.  J.  C.  P.  and  damaged  it;  the  question  was 
1.S7  ;  Buller  v.  Fisher,  Park's  Ad.  whether  this  fell  within  the  excepted 
Cas.  (K.  B.)  183.  perils  in  the  bill  of  lading,  viz.,  "  boil- 
2  Moosum  V.  Brit.  India  Steam  Nav.  ers,  stearrf,  machinery,  and  their  ap- 
Co.,  8  Cal.  W.  R.  C.  R.  35.  Here  purtenances."  It  was  held  that  being 
the  bill  of  lading  contained  the  phrase  one  ©f  the  excepted  risks  the  defend- 
"  accident  by  boilers,  steam,"  etc.  ants  were  not  liable.  Cited  in  Leg- 
In  Cox  V.  Star  Nav.  Co.  (Mit.  gett  on  Bills  of  Lading,  p.  183. 
Mar.  Reg.),  where  damage  had  been  ^  As  where  the  machinery  was  put 
done  to  a  cargo  of  rice  on  a  voyage  out  of  order  by  storm,  and  steam 
from  Calcutta  to  Liverpool,  water  escaped  into  the  hold.  Kelham  v. 
having  found  its  way  into  the  engine-  The  Kensington,  24  La.  Ann.  Rep. 
room  by  means  of  a  bilge  cock  hav-  100.  The  Galley  of  Lome,  Mit.  Mar. 
ing  been  left  unturned  and  owing  to  Reg.  Feb.  11,  1876.  Cited  in  Leg- 
a  door  being  left  open,  having  gone  gett  on  Bills  of  Lading,  p.  179. 
from  the  engine-room  to  the  part  of  .  *  41  L.  J.  Adm.  82. 
the  vessel  where  the  rice  was  stowed 

143 


§  205.]  BILLS    OF   LADING.  [CHAP.  XIV. 

much  as  salvage  under  such  circumstances  fell  within  the 
excepted  perils.  The  exception  also  covers  a  loss  caused  by 
frost  at  the  time  of  delivery,  when  there  was  a  delay  due  to 
the  breaking  of  the  machinery.'  If  the  machinery  aftpears  to 
have  been  of  good  material  and  frequently  ins[iected  and  that 
there  was  no  negligence  on  the  part  of  the  owners,  the  excep- 
tion will  apply  in  favor  of  the  ship  and  its  owners.* 

§  205.  The  term  "barratry"'  has  been  but  seldom  defined  in 
connection  with  bills  of  lading,  but  there  are  in  the  books 
numerous  cases  construing  it  as  occurring  in  policies  of  marine 
insurance.  It  is  to  these,  therefore,  that  reference  is  to  be 
made  in  determining  the  meaning  of  the  exception  under 
consideration.  Considerable  discussion  has  been  had  as  to  the 
derivation  of  the  word  barratry  and  as  to  its  consequent  sig- 
nification.^ Following  the  idea  of  fraud  or  deceit  which  un- 
doubtedly exists  in  the  word,  the  early  cases  define  the  term 
as  including  "every  species  of  fraud  or  knavery  in  the  master 
or  mariners  of  the  ship  by  which  the  owners  or  freighters  are 
injured."*  Said  Lord  Kenyon :  "There  must  be  fraud  to  con- 
stitute barratry."'  More  recent  cases  seem  scarcely  to  bear  out 
this  assertion.  In  Patapsco  Insurance  Company  v.  Coulter, 
Mr.  Justice  Johnson  went  carefully  over  the  grounds  of  the 
various  decisions  and  in  conclusion  held  that  barratry  is  not 
confined  to  fraud.  lie  preferred  the  definition  of  Enierigon, 
which  he  translated  "acting  without  due  fidelity  to  the 
owners."^  Prof.  Parsons,  in  his  treatise  on  ^farine  Insurance, 
uses  nearly  the  same  language  :  "Any  wrongful  act  of  the 
master,  oflicers,  or  crew  done  against  the  owner. "^  A  more 
full  definition  however  would  be,  the  wrongful  act  wrongfully 
intended  of  the  master   or  mariners  of  a  vessel,  prejudicial 

1  Seaman  v.  Adler,  37  Fed.  Rep.  581  (9  Geo.  II.)  ;  Valleys  u.  Wheeler, 
268.        •  1  Cowper,   143 ;   Cousillat  v.  Ball,  4 

2  Chadwick  v.  Denniston,  41  ib.  58.     Dall.    294  ;    Wilcocks    v.    Union   Ins. 
^  The  English  word  is  probably  an     Co.,   2    Binn,   (Pa.)  574;   Wiggin  v. 

adaptation  of  the  French  barat,  bara-  Amory,  14  Mass.  1. 

terie  (robbery,  deceit,  fraud),  which  ^  Phyn  v.  Royal  Exch.  Ins.  Co.,  7 

is  itself  from  the  Italian.  T.  R.  505. 

*  This  is  the  definition  of  Buller,  J.,  «  3  Pet.  222. 

in  Lockyer  v.  AfHey,   1   T.   R.   252;  ^  Vol.  1,  c.  xvii.,  §  6. 
see  also  Knight  v.  Cambridge,  1  Str. 

144 


CHAP.  XIV.]  EXCEPTIONS.  [§  206. 

to  and  without  the  knowledge  of  the  owners.  The  act  must  be 
wron2:ful.  It  must  amount  to  a  fraudulent  violation  or  a 
wilful  abandonment  of  duty.  Mere  negligence,  unless  so  gross 
that  wilfulness  is  to  be  presumed,  is  not  barratrous.  Thus, 
where  a  bill  of  lading  excepted  "  barratry,"  and  the  vessel  in 
which  the  goods  were  being  carried  met  another  vessel  under 
such  circumstances  that  it  was  the  duty  of  the  master  and  crew 
of  the  former  to  have  ported  her  helm  and  so  have  obviated 
the  collision  and  loss  of  goods  which  followed,  it  w^as  held  that 
the  conduct  of  the  master  and  crew  did  not  bring  the  loss 
within  the  exception.^ 

§  206.  The  following  acts  have  been  held  to  be  barratrous: 
attempting  to  run  a  blockade,^  disregarding  an  embargo,' carry- 
ing contraband  of  war,*  taking  on  board  the  cargo  out  of  a  cap- 
tured ship  of  the  enemy  before  it  has  been  condemned  by  a 
prize  court,'  resistance  of  a  neutral  vessel  to  the  search  of  a 
belligerent,*'  an  attempt  to  recapture  a  vessel  illegally  taken,' 
collusion  between  the  master  and  the  captain  of  a  privateer  as 
to  the  capture  of  the  ship,^  smuggling,^  stealing  of  cargo  by 
mariners  (other  than  petty  thieving),'"  delay  for  fraudulent  pur- 

•  Grill  V.  Iron  Screw  Colliery  Co.  ^  Brown  v.  Union  Ins.   Co.,  5  Day 

(Limited),  L.  R.  3  C.  P.  476.  (Ct.),  1. 

2  Everth  V.  Hannam,  6  Taunt.  375;  ^  Dederer  v.  Delaware  Ins.   Co.,  2 

Goldschmidt  v.  Whitmore,  3  ib.  508.  Wash.  C.  C.  61  ;  Wilcocks  v.  Union 

But  see  Vos  v.   United    Ins.   Co.,   2  Ins.  Co.,  2  Binn.  (Pa.)  574. 

Johns.  Cas.  180.     In  Calhoun  v.  Fit-  «  Arcangelo  v.  Thompson,  2  Camp, 

zimmons,  1  Binn.  (Pa.)  293,  321,  and  620. 

fol.,   it    was   shown   that   a   ship   had  »  Stone  v.    National   Ins.    Co.,    19 

been  seized  while  nearing  the  block-  Pick.  (36  Mass.)   34;   American  Ins. 

aded  city  of  Cadiz.     The  admiral  of  Co.  v.  Bryan,  26  Wend.  (N.  Y.)  563 ; 

the  blockading  squadron  subsequently  Havelock  v.   Hancill,   3  T.    R.    277; 

asked  the  master,  if  released,  to  what  Lockyer    v.    Otfley,    1    ib.    252.      In 

port  he  would  go.     To  which  the  mas-  the   last   case,   the   ship   having  been 

ter  made  answer,   Indicating  that  he  moored  at  the  wharf  for  twenty-four 

would  attempt  to  enter  Cadiz.     This  hours  before  seizure,  under  the  terms 

was  held  to  constitute  barratry.  of    the   policy,    the   insurer  was   dis- 

»  Robertson  u.  Ewer,  1  T.  R.   127.  charged.     Marialegue  v.  Louisiana  Ins, 

*  Suckley   v.   Delafield,    2    Caines,  Co.,  8  La.  Rep.  65. 

222.  ^°  American  Ins.  Co.  v.  Dunham,  12 

6  Ward  V.  Wood,  13  Mass.  539.  Wend.  (N.  Y.)  463  ;  Pipon  v.  Cope, 

1  Camp.  434, 

10  145 


§  207.]  BILLS   OF    LADING.  [CHAP.  XIV. 

poses,*  wilfully  running  the  ship  ashore,^  taking  the  vessel  out 
of  her  course  and  selling  part  of  her  cargo,'  going  to  an  enemy's 
coast  to  trade,*  carrying  Polynesian  laborers  without  a  license 
with  full  knowledge  of  the  Act  of  35  and  36  Vict,  C.  19,  for- 
bidding it,*  using  the  vessel  for  privateering  purposes  contrary 
to  the  owners'  instructions,  notwithstanding  the  fact  that  a 
letter-of-marque  had  been  taken  out  for  the  ship  by  the  owners.' 
§  207.  Not  merely  the  act  but  the  intention  of  the  master  or 
crew  which  leads  to  its  commission  must  be  wrongful.  In  the 
language  of  Lord  Ellenborougii,  "  in  order  to  constitute  barra- 
try the  captain  must  be  proved  to  have  acted  against  his  better 
judgment."^  Very  many  acts  therefore,  not  ordinarily  barra- 
trous, become  so  if  done  with  barratrous  intent.  Such  are  the 
transshipping  of  the  cargo,^  the  neglect  to  make  practicable 
repairs,^  the  desertion  of  the  vessel  by  the  crew  through  fear 
of  capture,"*  the  breaking  up  of  the  ceiling  and  end  bows  of  the 
ship  so  that  she  was  thereby  much  weakened,"  the  taking  on 
board  of  French  refugees  in  violation  of  neutrality  laws.'''  Such 
also  is  deviation.  Mere  deviation  is  not  of  itself  ])arratrous." 
To  come  within  the  term  barratry,  it  must  be  without  the 
owners'  assent  and  contrary  to  the.owners'  interest.  Deviation, 
even  for  the  sake  of  pursuing  an  enemy's  ship  or  to  make  a 
capture,  will  not  be  barratrous,  unless  entered  upon  for  the  ag- 
grandizement of  the  master  or  crew  or  contrary  to  the  owners' 
orders.'*    If,  however,  a  barratrous  deviation  be  once  entered 

^  Roscow  V.  Corson,  8  Taunt.  684  ;  ">  Messonier  v.  Union  Ins.  Co.,  1  N. 

Ross  V.  Hunter,  4  T.  R.  33.  &  McC.  (S.  C.)  155. 

2  Soares  v.  Thomson,  7  Taunt.  627.  "  Todd  v.  Ritchie,  1  Stark.  190. 

'  Dixon  V.  Reid,  5  B.   &  Aid.  597;  '^  Crousillat  v.  Ball,  4  Dall.  294. 

S.  C.  1  D.  &  R.  207;  ].awton  v.  Sun  '"  Stamma  v.   Brown,   2    Str.   1173 

Mutual  Ins.  Co.,  2  Cush.  (56  Mass.)  (16  Geo.  II.)  ;   Vallego  v.  Wheeler,  1 

500.     But   see   Hibbert   v.    Martin,   1  Cowper,   143;   Phyn  v.    Royal  Exch. 

Camp.  539.  Ins.  Co.,    7  T.   R.   505;  Thurston  v. 

*  Earle  v.  Rowcroft,  8  East,  126.  Columbian  Ins.  Co.,  3  Caines  (N.  Y.), 

5  Australasian  Ins.   Co.  v.  Jackson,     89;   Wiggin  v.  Amory,  14  Mass.  1. 

3  Asp.  Mar.  Law  Ca.  (N.  S.)  26.  ^*  Wiggin     v.     Amory,      ib.        In 

6  Mossr.  Byrom,  6  T.  R.  379.  Hood's   Exr's   v.    Nesbit,    2    Dallas, 
">  Todd?'.  Ritchie,  1  Stark.  190.  137,    the   law  is   stated    substantially 

*  Stuart  r.  Tennessee  M.&  F.  Ins.  thus:     If    the    master     deviate    and 
Co.,  1  Humph.  242.  make    a    capture    for    his    own    pri- 

^^*  vate   advantage   alone,  this  is   barra- 

146 


CHAP.  XIV.]  EXCEPTIONS.  [§  208. 

upon,  barratry  maj  be  set  np  as  the  cause  of  loss,  whether 
the  loss  occurred  actually  during  the  fraudulent  voyage  or 
afterwards,  if  barratry  be,  indeed,  the  proximate  cause  of  loss.^ 

§  208.  It  is  no  defence  to  the  charge  of  barratry,  to  set  up 
the  fact  of  the  master's  drunkenness,  but  it  is  otherwise  with 
respect  to  insanity,  even  if  brought  on  by  excessive  drinking. 
The  master  of  a  whaling  vessel,  instead  of  cruising  for  whales, 
put  into  the  port  of  Taheti  and  there  performed  various  barra- 
trous acts.  It  was  endeavored  to  be  shown  by  the  defence  that 
these  acts  were  done  by  the  captain  while  under  the  influence 
of  liquor,  but  the  court  held  that  this  was  no  defence,  unless 
it  could  be  made  clear  that  at  the  very  time  of  the  commission 
of  the  barratrous  acts,  the'master  was  in  a  fit  of  delirium  tremens 
or  laboring  under  some  other  form  of  insanity.^ 

Barratry  is  the  act  of  master  or  crew.  It  would  seem  that 
this  does  not  include  the  act  of  the  purser  of  the  vessel.^  The 
fact  that  others  not  standing  in  any  direct  relation  to  the  owner 
combined  in  the  commission  of  the  barratrous  act,  with  the 
master  or  crew,  does  not  affect  its  character.  In  Toumlin  v. 
Anderson*  a  ship  had  on  board  a  large  number  of  prisoners  of 
war.  These  combined  with  five  of  the  mariners  and  captured 
the  ship.  This  was  a  loss  by  barratry.®  The  privity  of  the 
freighter  to  the  barratrous  act  does  not  aftect  its  character  ;* 
nor  does  the  fact  of  the  subsequent  condemnation  of  the  cargo 
by  an  enemy's  prize  court  create  a  presumption  that  the  loss 
was  in  reality  by  capture  and  not  through  barratry.'  Barratry 
may  be  committed  by  the  master  in  respect  to  the  cargo,  though 
the  owner  of  the  cargo  is  at  the  same  time  owner  of  the  ship 

try;  if  for  the  owners'    exclusive  ad-  Hun  (N.  Y.),  100;  but  see  S.  C,  80 

vantage   this  is  clearly  not  barratry.  N.  Y.71. 

In  the  case  at  bar  the  advantage  of  *  1  Taunt.  227. 

both  was  sought.     This  cannot  be  held  *  Also  Toumlin  v.  Inglis,  1   Camp. 

to  be  barratry.  421. 

'  Vallego  V.   Wheeler,    1    Cowper,  ^  Unless,   of  course,  the  privity  of 

143.  the    ship-owner  can   be   also   shown. 

2  Lawton  v.  Sun  Mutual  Ins.  Co.,  2  Boutflower   v.    Wilraer,     2    Selwyn's 

Cush.  (56  Mass.)  500.                            ■  Nisi  Priiis,  96  (21  Geo.  II.). 

*  Spinetti   v.    Atlas  S.   S.   Co.,   14  ^  Goldschraidt     v.     Whitmore,     3 

Taunt.  508. 

147 


§  210.] 


BILLS   OF   LADING. 


[chap.  xrv. 


and  though  the  master  is  also  the  supercargo  or  consignee  for 

the  voyage.* 

§  209.  The  barratrous  act  must  be  prejudicial  to  and  witliout 
the  knowledge  of  the  owner.^  It  is  not  essential  that  the  bar- 
ratry should  be  to  the  interest  of  the  master'  and,  on  the  other 
hand,  in  Earle  v.  Rowcroft*  the  doctrine  is  laid  down  that  an 
intention  to  injure  the  owner,  or  to  gain  at  his  expense,  need 
not  be  shown.  It  is  enough  if  the  act  prove  to  be  a  breach  of 
the  trust  reposed  and  to  the  owner's  injury.' 

§  210.  It  follows  as  a  corollary  from  what  has  been  said,  that 
a  master  who  is  an  owner  cannot  commit  barratry.*  A  master 
who  has  control  of  the  vessel  under  a  charter-party  cannot  com- 
mit barratry.^  The  same  rule  holds  as  to  a  master  who  is  a  part 
owner,^  or  who  hires  a  vessel  for  a  stated  period,  rendering  to 
the  owner  a  portion  of  the  profits.'  Where,  however,  M.  char- 
tered a  vessel  to  A.  and  B.  for  a  particular  voyage,  reserving 


*  Cook  V.  Commercial  Ins.  Co.,  11 
Johns.  (N.  Y.)  40. 

2  Nutt  V.  Bourdieu,  1  T.  R.  323  ; 
Croiissilkt  V.  Ball,  4  Dall.  294  ;  Ward 
V.  AVood,  13  Mass.  539.  The  privity 
of  the  owner  will  not,  however,  be  dis- 
affirmed by  the  mere  fact,  that  the 
master  has  sworn  that  a  vessel,  con- 
demned for  a  breach  of  blockade,  was 
really  bound  for  another  destination. 
Everth  v.  Hannam,  6  Taunt.  375. 

"  Dederer  v.  Delaware  Ins.  Co.,  2 
Wash.  C.  C.  61.  The  presumption  is 
that  a  fraudulent  act  was  for  the  bene- 
fit of  the  master.  The  insured  need 
not  affirmatively  show  it  to  have  been 
so.  Kendrick  v.  Delafield,  2  Caines 
(N.  Y.),  C7. 

*  8  East,  126. 

*  This  case  is  apparently  opposed 
to  the  principle  (stated  above)  that  a 
wrongful  intent  is  necessary  to  consti- 
tute barratry.  Perhaps  the  two  prin- 
ciples are  to  be  reconciled  by  stating 
that  in  case  of  injury,  where  the  intent 
to  hijure  has  been  wanting,  the  wilful- 

148 


ness  is  to  be  implied,  from  the  fact 
that  the  master  had  no  right  to  infer 
that  the  owner  would  desire  or  assent 
to  a  breach  of  the  law  even  for  his  own 
benefit.  See  Parsons  on  Marine  In- 
surance, Vol.  I.,  p.  567  (Ed.  1868). 

6  Nutt  V.  Bourdieu,  1  T.  R.  323. 

'  Marcardier  v.  Chesapeake  Ins. 
Co.,  8  Cranch,  39. 

*  Wilson  V.  General  Mutual  Ins.  Co., 
12  Cush.  (66  Mass.)  360;  Jones  v. 
Nicholson,  10  Exch.  28;  1  Phillips 
on  Ins.,  §  1082  ;  Rossi?.  Hunter,  4  T. 
R.  33. 

9  Hallet  V.  Columbian  Ins.  Co.,  8 
Johns.  (N.  Y.)  272;  Taggard  v. 
Loring,  16  Mass.  336. 

It  is  not  incumbent  on  the  insured 
to  prove  that  the  master  was  not  the 
owner.  That  must  be  shown  by  the 
insurer.  A  fraudulent  sale  and  pur- 
chase by  the  owner  will  not  make  him 
the  owner,  so  as  to  afford  a  defence  to 
a  claim  for  a  loss  by  his  barratry. 
Steinbach  v.  Ogden,  3  Caines,  1. 


CHAP.  XIV.]  EXCEPTIONS.  [§  212. 

certain  privileges  and  half  the  cabin  for  the  master  and  mate 
and  covenanting  to  hire  and  pay  the  master  and  crew  and  fur- 
nish them  with  all  provisions,  etc.,  and,  at  the  request  of  B. 
who  was  on  board,  the  master  deviated  from  his  course  and 
was  captured  by  a  Spanish  privateer,  this  was  held  to  be  bar- 
ratry, in  that  M.  was  still  the  owner  of  the  ship.'  Barratry 
cannot  be  committed  by  a  master  who  has  the  equitable  title 
to  the  vessel.^ 

§  211.  The  act  of  the  owner  himself  may  sometimes  be  bar- 
ratry. If  a  vessel  is  owned  by  two  persons  and  one  as  part 
owner  commit  the  barratrous  act,  this  will  not  defeat  the  right 
of  the  other  to  recover  his  portion  on  the  grounds  under  con- 
sideration.3  Where,  too,  the  owner  places  the  vessel  under 
the  sole  control  of  the  freighter,  any  act  of  the  owner  in  de- 
fraud of  the  freighter,  as  wilfully  running  the  ship  ashore,  is 
barratry."  Negligence  on  the  part  of  the  insured  is  a  good 
defence  to  the  allegation  of  barratry,  but  it  is  incumbent  on  the 
insurer  to  prove  such  negligence.  The  insured  does  not  have 
to  prove  the  negative.^  The  negligence  may  be  constructive, 
as  where  the  plaintiff  was  presumed  to  have  negligently  per- 
mitted smuggling,  from  the  fact  that  he  had  ample  opportunity 
to  know  that  it  was  being  carried  on.® 

§  212.  Loss  by  "collision"  is  said  to  be  included  in  the  excep- 
tion perils  of  the  seas.  By  this  is  meant  loss  by  unavoidable 
collision  to  which  the  negligence  of  the  carrier  has  in  no  way 
contributed.^ 

There  are    four  possible  conditions    respecting   negligence 

1  Mclntyre  v.  Bowne,  iJohns.  (N.  ^  Smith  v.  Scott,  4  Taunt.  125; 
Y.)  229.  The    Kathleen,   43   L.    J.   Adm.    39; 

2  Barry  v.  Louisiana  Ins.  Co.,  11  Lloyd  v.  General  Iron  Screw  Collier 
Mait.  La.  630.  Co.,  10  L.  T.,  N.  S.  586;    S.  C,  12 

3  Strong?;.  Martin,  1  Dunl.  Bell  and  W.  R.  882;  10  Jur.,  N.  S.  661;  33 
Mur.  Sess.  Cas.  1245.  But  see  cases  L.  J.  Exch.  269;  3  H.  &  C.  284; 
before  cited.  Plaisted  v.  Boston,  etc.,  S.  Nav.  Co., 

*  Soares  v.  Thornton,  7  Taunt.  627.  27    Me.    132  ;    Hays  v.  Kennedy,  41  " 

6  American  Ins.  Co.  v.  Bryan,   26  Pa.   St.   378;    S.   C,  3  Grant   (Pa.), 

Wend.   (N.  Y.)  563  ;    Stone  v.  Na-  351  ;  Van  Horn  u.  Taylor,  7  Rob.  La. 

tional  Ins.  Co.,   19  Pick.  (36  Mass.)  201  ;    The  New  Jersey,  Olcott,  444; 

34.  Peters  v.  Warren  Ins.  Co.,  14  Pet.  99  ; 

6  Pipon  V.  Cope,  1  Camp.  434.  Marsh  v.  Blythe,  1  McCord,  360. 

149 


§  213.]  BILLS    OF   LADING.  [CHAP.  XIV. 

under  which  collision  may  occur.  First,  when  tlie  master  or 
crew  of  each  of  the  colliding  boats  has  been  guilty  of  negli- 
gence. Second,  where  the  accident  is  due  to  the  negligence  of 
the  master  or  crew  of  the  boat  on  board  which  are  the  goods. 
Third,  where  the  accident  is  due  to  the  negligence  of  the  mas- 
ter or  crew  of  the  other  vessel.  Fourth,  where  there  is  no  neg- 
ligence on  either  side  and  the  loss  is  strictly  unavoidable.' 

Clearly  the  carj-ier  cannot  take  refuge  under  the  exception 
under  consideration  or  under  the  exception  "Perils  of  the  sea" 
to  escape  his  liability  for  a  loss  coming  under  either  the  lirst^  or 
the  second^  head.  It  is  equally  clear,  on  the  other  hand,  that 
these  exceptions  will  exonerate  the  carrier  from  liability  for 
losses  of  the  fourth  class.* 

§  213.  As  to  the  third  class,  however,  there  has  been  some 
question.  The  American  ca^es  are  all  to  the  efl'ect  that  an  in- 
nocent carrier  will  in  such  case  of  loss  be  exonerated  under  the 
exception  "perils  of  the  sea,"  no  matter  what  negligence  may 
be  imputed  to  the  other  carrier.'  Mr.  Lawson  in  his  work 
on  Contracts  of  Carriers^  while  admitting  the  law  to  be  as 
stated  in  these  cases,  criticises  its  soundness  on  the  ground  that 
the  injured  carrier  has  himself  a  remedy  over  against  the  vessel 
inflicting  the  injury  and  he  cites  an  opinion  by  Lord  Kenyon, 
in  Buller  v.  Fisher''  (1800),  in  which  the  phrase  "perils  of  the 
sea"  is  made  to  include  only  "  misfortune  happening  during  the 
voyage,  which  human  prudence  could  not  guard  against  .... 
accidents  happening  without  fault  in  either  party,"  and  hence, 
by  implication,  perhaps,  to  exclude  the  class  of  acci  lents 
under  consideration.     This  case  is  not  supported  by  the  other 

1  The  Woodrop,  2  Dods.  Ad.  Rep.  Co.,  27  Me.  132;  The  New  Jersey, 
83  ;  Leggett  on  Bills  of  Lading,  p.  Olcott,  444  ;  Marsh  v.  Blythe,  1  Mc- 
209.  Cord,  360. 

2  Lloyd  V,  General  Iron  Screw,  etc.,  »  Van  Horn  v.  Taylor,  7  Rob.  201  ; 
Co.,  supra;  Grill  v.  Same,  L.  R.  1  2  La.  Ann.  Rep.  587;  Hays  v.  Ken- 
C.  P.  600  ;  S.  C,  12  Jur.  N.  S.  727  ;  nedy,  41  Pa.  St.  378  ;  S.  C,  3  Grant 
35  L.  J.,  C.  P.  321*;  14  AV.  R.  893  ;  (Pa.),  351  ;  Whitesides  u.  ThurkiU,  12 
affirmed,  L.  R.  3  C.  P.  476.  S.  &  M.  599. 

*  Convers    v.   Brainard,    27    Conn.         ^  §  165,  p.  232. 
607  ;  Angellon  Carriers,  §  166,  note  a.         7  3  £sp,  57^ 

*  Plaisted  v.  Boston,  etc.,  S.  Nav. 

150 


CHAP.  XIV.]  EXCEPTIONS.  [§  215. 

English  decisions,'  nor  is  the  reason  given  for  its  soundness, 
convincing.  Whatever  may  be  the  inter[)retation  of  the  phrase, 
"perils  of  the  sea,"  with  respect  to  accidents  of  this  sort,  there 
can  be  but  little  doubt  that  the  exception  "  collision"  when 
included  in  a  bill  of  lading,  embraces  all  accidents  of  that 
nature  not  attributable  to  the  negligence  of  the  carrier.  In 
The  Sun  Mutual  Insurance  Company  v.  The  Mississippi  Trans. 
Company,^  the  carrier  was  the  owner  of  a  line  of  barges,  in 
one  of  which'  the  goods  of  the  plaintiff  were  to  be  conveyed. 
Through  carelessness  in  the  manoeuvering  of  the  defendant's 
tug  boats  in  getting  the  barges  together  preparatory  to  start- 
ing, a  collision  ensued  by  which  the  plaintiff's  goods  were 
damaged.  Collision  was  among  the  excepted  perils.  The 
court  held  that  the  loss  was  not  covered  by  this  exception. 

§  214.  The  obligation  to  protect  the  goods  after  damage  by 
collision  rests  on  the  carrier,  as  in  the  cases  of  loss  falling 
within  the  other  exceptions.  In  Notara  v.  Henderson,^  the 
plaintiffs  shipped  beans  from  Alexandria  for  Glasgow.  While 
in  the  intermediate  port  of  Liverpool,  the  carrier's  ship  met 
with  damage  by  collision.  The  beans  were  wetted  by  sea-water 
and  the  ship  remaining  only  a  few  days  at  Liverpool,  it  was 
impossible  to  dry  them.  The  plaintiffs  objected  to  the  beans 
beins:  taken  on  to  Glaso-ovv  in  their  then  condition  and  offered 
to  receive  the  goods  and  pay  freight  jpro  rata  to  Liverpool. 
Defendants  insisted  on  full  freight  and  carried  the  beans  to 
Glasgow,  where  they  arrived  in  a  damaged  condition.  It  was 
held  that  the  plaintiffs  were  entitled  to  recover. 

§  215.  The  mere  proof  of  the  happening  of  a  collision  is  not, 
however,  evidence  of  negligence.  It  is  necessary  for  the  party 
suing  a  carrier  protected  by  the  exception  to  give  evidence  of 
the  absence  of  reasonable  care  or  maritime  skill  on  the  carrier's 
part.     Where  doubt  exists  as  to  the  cause  of  the  accident,  the 

1  Smith    V.    Scott,    4    Taunt.    125;         ^  4  McCrary,  636.    See  also  Wilson 

Wilson   V.   Xantho,   L.    R.,   12   App.  v.    Xantho,    L.     R.,    12    App.    Cas. 

Cas.  503  ;  Peakes,  C.  183  ;  2  Arnould  503. 

on  Insurance,  804 ;  Abbot  on  Shipping,         ^  l    R.,  52  B.  346;   S.   C,  41   L. 

Pt.   III.,   ch.   iv.,   §   5,   5th  ed.     See  J.,  2  B.  158. 
Story  on  Bailments,  §§512,  514. 

151 


§  215. J  BILLS   OF   LADING.  [CHAP.  XIV. 

court  will  prefer  to  regard  it  as  falling  within  the  exception.^ 
If  the  goods  were  at  the  time  of  the  accident  stowed  on  deck 
and  but  for  this  fact,  would  not  have  been  injured,  it  would 
seem  that  the  liability  of  the  carrier  depends  largely  upon  the 
question  of  the  knowledge  and  consent  of  the  shipper  to  that 
sort  of  stowage  and  that  unless  such  consent  can  be  shown  the 
carrier  is  liable.^  Where  negligence  is  alleged,  it  is  no  defence 
for  the  carrier  to'set  up  that  the  colliding  vessel  was  also  in 
fault.^  In  such  case  it  would  seera  that  both  vessels  may  be 
held  liable  and  in  "The  Milan'"^  it  is  said  that  an  innocent  ship- 
per may  recover  in  the  English  Admirailty  the  sum  total  of 
damage  jointly  from  the  two  colliding  vessels,  in  equal  shares, 
and  may  sue,  either  under  the  old  law  of  the  Admiralty  or  un- 
der the  Merchants'  Shipping  Act  of  1854  (17  and  18  Vict.  C. 
104).  It  has  been  further  held  that  the  ninth  section  of  the 
latter  act,  limiting  the  damages  recoverable  to  the  value  of 
the  ship,  does  not  apply  to  a  foreign  ship,  which  is  to  blame  for 
a  collision  and  that  her  owners  are  responsible  to  the  extent  of 
the  damage  done,  though  exceeding  the  value  of  the  ship  and 
freight.'  The  measure  of  damage  for  goods  lost  in  collision,  it 
is  said,  is  the  price  paid  at  the  port  of  shipment,  plus  the  ex- 
pense of  loading  them  on  board  and  the  expense  of  navigating 
the  vessel  to  the  place  of  collision,  together  with  interest  on 
such  account  from  the  date  of  the  collision.® 

»  The    Shannon,  1    W.   Rob.   463;  ^  Angell  on  Carriers,  §  166  N.  A.  ; 

The  Ebenezer,  2  ib.  206  ;   The  Mary  Converse  v.  Brainerd,  27  Conn.  607. 

Stewart,  ib.  244;  Hammack  v.  White,  *  31  L.  J.  Adra.  111. 

31  L.  J.,  C.  P.  129;  Scott  V.  London  «  Cope  v.  Doherty,  4  Jurist,  N.  S. 

Dock  Co.,  34  L.  J.,  Ex.  220.  699;  The  Victor,  29  L.  J.  Adm.  110; 

2  Van  Horn  v.  Taylor,  2  La.  Ann.  2  L.  T.,  N.  S.  331. 

Rep.  587  ;  Daggett  v.   Shaw,   3  Mo.  ^  The  Ocean  Queen,   2  Asp.  Mar. 

189.  Law  Cas.  419  ;   1  W.  Robinson,  457. 
152 


CHAP.  XV.] 


EXCEPTIONS. 


[§  216. 


CHAPTER  XV. 

EXCEPTIONS  Continued-dangers  OF  THE  ROADS-ESCAPES 
—VICIOUSNESS- UNRULY  ANIMALS— FIRE. 


'  'Dangers  of  Roads, ' '  "Risk  of  Boats, ' ' 
§216. 

"Escapes,  Viciousness,  Injuries  to  un- 
ruly animals,"  §  217. 

"Escapes,"  etc.,  degree  of  care, 
§  218. 

Consent  of  the  owner  as  to  manner  of 
shipment  does  not  relieve  from  con- 
sequences of  negligence,  §§  219, 
220. 

Carrier  is  bound  to  prevent  escapes, 
§221. 

Carrier  is  not  liable  when  consignee  is 
not  ready  to  receive  live  stock,  §  222. 
"Fire,"  generally,  §  223. 


Whit  is  loss  by  fire,  §  224. 

To  fire  merely  an  incident  to  other  loss 
the  exception  does  not  apply,  §  225. 

Exception  does  not  relieve  for  conse- 
quences of  negligence,  §  226. 

Burden  of  proving  the  loss  within  the 
exception,  §  227. 

Doctrine  in  Ohio,  §  228. 

Rule  in  Federal  Courts,  §  229. 

Exception  to  be   strictly  interpreted, 
§230. 

Exception  co-extensive  with  liability, 

§231. 
Legislation  affecting  the  exception  fire, 
§§  232,  233. 


§  216.  The  phrase,  "dangers  of  the  roads,"  is  somewhat 
ambiguous.  In  De  Rothschild  v.  Royal  Mail  Steam  Packet 
Company^  it  was  said  that  the  word  "  roads"  in  this  connection 
is  ordinarily  to  be  construed  to  mean  marine  roads  or  harbors, 
but  where  it  is  applied  to  land  carriage  it  may  mean  such  dan- 
gers as  are  immediately  caused  by  the  condition  of  highways 
on  land,  as  the  overturning  of  carriages  in  rough  or  precipitous 
places.  In  this  case  goods  were  received  by  the  defendants  at 
Panama  to  be  delivered  in  London.  The  evidence  showed  that 
the  property  had  been  placed  in  a  railway  truck  at  Southamp- 
ton and  was  stolen  without  violence  while  in  transit  to  London. 
It  was  said  that  the  exception  did  not  contemplate  or  include 
loss  by  theft.  The  application  of  the  phrase  to  carriage  by 
rail  does  not  seem,  as  yet,  to  have  been  made. 


•  21  L.  J.  Ex.  N.  S.  273;  S.  C.  7  Exch.  734. 

153 


§  216.]  BILLS   OF   LADING.  [CHAP.  XV. 

In  the  other  meaning  of  the  exception,  as  including  such 
dano-ers  as  are  incident  to  roadsteads  or  harbors,  the  addition 
of  the  phrase  to  the  ordinarily  excepted  perils  of  the  bill  of 
lading  seems  unnecessary.  In  Transportation  Company  v. 
Downer^  it  is  said  that  dangers  incident  to  the  shallowness  of 
water  at  the  entrance  of  a  harbor  are  included,  in  the  absence 
of  neo-ligence  on  the  part  of  the  carrier,  within  the  exception 
"dangers  of  lake  navigation." 

An  interesting  query  arises  in  this  connection.  Do  the  ex- 
ceptions, perils  of  the  sea,  dangers  of  roads  and  the  like,  extend 
to  the  transfer  of  goods  in  port  into  smaller  boats  for  the  pur- 
pose of  loading  or  unloading  them?  In' St.  Louis,  etc.,  R.-R. 
Co.  V.  Smuck,^  where  goods  were  destroyed  while  in  a  wharf- 
boat,  it  was  said  by  the  court  that  the  voyage  had  not  yet 
begun  and  that  the  exception  "  dangers  of  the  river"  did  not 
apply.  In  the  case  of  Johnston  v.  Benson,^  decided  in  1819,  it 
appeared  that  the  phrase  "  risk  of  boats,  so  far  as  ships  are  lia- 
ble thereto,  excepted,"  occurred  in  the  bill  of  lading  and  that 
the  carrier  was  held  under  it  to  be  exempt.  Here,  the  voyage 
was  to  Jamaica  and  the  goods  had  to  be  taken  off  in  small 
boats  belonging  to  the  ship.  The  court,  nevertheless,  said 
that  the  phrase  was  unnecessary  and  that  "the  ship-owner 
engaged  in  such  a  trade  as  the  West  Indian,  incurs  no  greater 
or  other  liability  with  regard  to  goods  in  the  boats,  than  exists 
in  respect  to  those  in  the  ships." 

In  an  Indian  case  where  the  consignee  had  not  boats  along- 
side ready  to  take  delivery  of  his  goods  upon  the  vessel  drop- 
ping anchor  and  where  the  bill  of  lading  provided  that  "  the 
goods  on  arrival  at  their  port  of  destination  are  to  be  deliv- 
ered into  the  receiving  ship  or  to  be  landed  at  the  consignee's 
expense,  the  ship-owner's  liability  ceasing  as  soon  as  they 
were  delivered  from  the  ship's  tackle,"  and  w^here,  upon 
arrival  of  the  ship  at  the  port,  the  goods  were  put  into  other 
boats,  one  of  which,  through  the  negligences  of  the  boatmen, 
was  swamped  and  the  contents  damaged,  the  ship-owner  was 

1  11  Wall.  129.  3  4  Moore,   90;    S.  C.   1  B.  &  B. 

^  49  Ind.  302.  454. 

154 


CHAP.  XV.] 


EXCEPTIONS. 


[§  217. 


held  not  to  be  liable,  unless  it  was  shown  that  he  had  failed  to 
take  reasonable  and  proper  care  in  the  selection  of  boats.^ 

§  217.  The  question  whether  carriers  of  live  animals  are 
common  carriers  has  been  much  discussed.  It  would  seem 
that  in  England,^  in  Kentucky^  and  in  Michigan,*  they  are 
not  so  to  be  regarded,  though  elsewhere  in  the  United  States 
they  are  to  be  considered  as  subject  to  the  common  law  lia- 
bility.' It  is  agreed,  however,  on  all  sides  that  the  carrier  of 
animals  cannot,  even  at  the  common  law,  be  held  for  damage 
or  loss  o-rowing  out  of  the  vices  or  propensities  of  the  animals 
carried^  and  Mr.  Justice  Willis  suggests  that  the  question 
whether  the  carrier  of  animals  is,  or  is  not,  truly  a  common 
carrier  has  become  simply  a  quibble  about  names.^  To  this  a 
learned  author  takes  exception,  asserting  that  the  question  is 


^  Leggetton  Bills  of  Lading,  p.  218  ; 
Bullock  V.  Toay  Anny,  24  Cal.  W.  R. 
C.  11.  74. 

2  Palmer  v.  Grand  Junction  Ry. 
Co.,  4  M.  &  W.  749;  Carr  v.  Lan- 
cashire, etc.,  Ry.  Co.,  7  Exch.  712; 
Chippendale  v.  Yorkshire,  etc.,  Ry. 
Co.,  15  Jur.  1106;  Clarke  v.  Roch- 
ester Ry.  Co.,  4  Kern.  570  ;  McManus 
V.  Lancashire,  etc.,  Ry.  Co.,  4  H.  & 
N.  328 ;  same,  2  ib.  693 ;  Pardington 
V.  South  Wales  Ry.  Co.,  38  Eng.  L. 
&  Eq.  Rep.  432. 

3  Louisville,  etc.,  R.  R.  Co.  v. 
Hedger,  9  Bush  (Ky.),  645;  Hall  v. 
Renfro,  3  Mete.  (Ky.)  51. 

*  Lake  Shore,  etc.,  R.  R.  Co.  v. 
Perkins,  25  Mich.  329;  Michigan, 
etc.,  R.  R.  Co.  V.  McDonough,  21 
Mich.  165. 

6  Penn  v.  Buffalo,  etc.,  R.  R-  Co., 
49  N.  Y.  204 ;  Cragin  v.  New  York, 
etc.,  R.  R.  Co.,  51  N.  Y.  61  ;  Mynard 
V.  Syracuse,  etc.,  R.  R-  Co.,  7  Hun 
(N.  Y.),  399;  Clarke  v.  R.  &  S.  R. 
R.  Co.,  14  N.  Y.  570;  Harris  v. 
Northern,  etc.,  R.  R.  Co.,  20  N.  Y. 


232;  Conger  v.  Hudson  River  R.  R. 
Co.,  6  Duer  (N.  Y.),  375;  Ritz  v. 
Pennsylvania  R.  R.  Co.,  3  Phila.  82  ; 
Powell  V.  Pennsylvania  R.  R.  Co.,  32 
Pa.  St.  414;  Wilson  i'.  Hamilton,  4 
O.  St.  722;  Welsh  v.  Pittsburgh  & 
R.  R.  Co.,  10  O.  St.  65;  Evans  v. 
Fitehburg  R.  R.  Co.,  Ill  Mass.  142; 
Ohio,  etc.,  R.  R.  Co.  v.  Dunbar,  20 
111.  623;  St.  Louis,  etc.,  R.  R.  Co. 
V.  Dorraan,  7  2  111.  504;  Kimball  v. 
Rutland,  etc.,  R.  R.  Co.,  26  Vt.  247; 
Rixfordv.  Smith,  52  N.  H.  355;  S. 
&  N.  Ala.  R.  R.  Co.  V.  Henlein,  56 
Ala.  368;  East  Tennessee,  etc.,  R. 
R.  Co.  V.  Whittle,  27  Ga.  535  ;  Ag- 
new  w.  The  Contra  Costa,  27  Cal.  425  ; 
Kansas,  etc.,  R.  R.  Co.  v.  Reynolds, 
8  Kan.  623;  Kansas,  etc.,  R.  R.  Co. 
V.  Nicholls,  9  Kan.  235;  McCoy  v. 
Keokuk,  etc.,  R.  R.  Co.,  44  la.,  424; 
Atchison,  etc.,  R.  R.  Co.  v.  Wash- 
burn, 5  Neb.  117. 

®  Cases  cited  above. 

7  Great   Western    Railway   Co.    v. 
Blower,  20  W.  R.  776. 

155 


I  218.]  BILLS    OF   LADING.  [CHAP.  XV. 

of  importance  in  determining  the  burden  of  proof.^  However 
this  may  be,  it  is  evident  that  where  the  bill  of  lading  contains 
such  exceptions  as  "escapes,  viciousness,  injury  to  unruly  ani- 
mals," the  distinction  is  not  of  practical  value. 

Certain  it  is,  moreover,  that  whether  these  exceptions  be  ex- 
pressed or  not  the  carrier  of  animals  is  not  an  insurer  against 
injuries  or  loss  resulting  from  the  vice  inherent  in  the  animals 
themselves,  which  could  not  have  been  prevented  by  foresight 
and  diligence.  In  other  words  the  carrier  is  not  liable  for  loss 
occasioned  by  the  escape  or  by  the  viciousness  of  the  animals 
carried,  except  when  his  own  neglect  has  contributed  to  the 
result.2  gQ  where  animals  are  sent  over  a  railroad  the  company 
is  liable  for  any  injury  they  may  sustain,  either  by  the  improper 
construction  of  the  cars  or  the  want  of  reasonable  equipments 
or  the  improper  position  of  the  car  in  the  train.^ 

§  218.  The  language  of  Mr.  Justice  Willis  in  the  case  of 
Blower  v.  Great  Western  Railway  Company,^  already  referred 
to,  is  of  interest,  as  indicating  what  degree  of  care  is  required 
of  the  carrier.  The  action  was  for  the  loss  of  a  bullock  belong- 
ing to  the  plaintiff,  which,  in  transportation,  escaped  from  the 

^  Lawson  on  Contracts  of  Carriers,  Hawkins    v.    Great    Western    R.    R. 

§16.  Co.,    17    Mich.    51;    Great   Western 

2  This  is  by  the  same  principle  which  R.  R.  Co.  v.  Hawkins,  18  ib.  427. 
exempts  carrier  from  responsibility  for  ^  Angell  on  Carriers,  §  214,  citing 
loss  from  the  inherent  defects  of  mer-  AValker  v.  London  Ry.  Co.  ;  Kingston 
chandise.  Clarke  v.  R.  &  S.  R.  R.  Co.,  Spring  Assizes  (1843),  cited  in  Waif. 
14  N.  Y.  570 ;  Penn  v.  B.  &  E.  R.  R.  Sum.  of  Law  of  Railways,  305  ;  Pal- 
Co.,  49  N.  Y.  204  ;  Evans  v.  Fitchburg  mer  v.  Grand  Junction  Railroad  Co., 
R.  R.  Co.,  Ill  Mass.  142;  McCoy  v.  4  M.  &  W.  749;  contra,  Cragin  v. 
The  Keokuk,  etc.,  R.  R.  Co.,  44  la.  New  York  Central  R.  R.  Co.,  51  N. 
424;  Rixford  v.  Smith,  52  N.  H.  355.  Y.  61  ;  Nicholas  ?'.  New  York  Cen- 
It  is  here  implied  that  the  common  tral  R.  R.  Co.,  4  Hun  (N.  Y.),  327; 
method  of  carrying  cattle  is  per  se  Betts  v.  Farmers'  Loan,  etc.,  Co.,  21 
negligent.  Ohio,  etc.,  R.  R.  Co.  r.  AVisc.  80;  Hord  v.  Grand  Trunk  Ry. 
Dunbar,  20  111.  623;  Clarke  v.  Roch-  Co.,  20  Upper  Canada,  C.  P.  361; 
ester,  etc.,  Ry.  Co.,  4  Kern.  570;  1  Gannell  v.  Ford,  5  L.  T.  N.  S.  604; 
S.  &  N.  Ala.  R.  R.  Co.  v.  Henlein,  Chippendale  v.  Yorkshire,  etc.,  Ry. 
56  Ala.  368;  Adams  Ex.  Co.  v.  Nock,  Co.,  15  Jur.  1106. 
2  Duv.  562;  Louisville,  etc.,  R.  R.  *  7  L.  R.  C.  P.  655;  S.  C,  20  W. 
Co.  V.  Hedger,  9  Bush  (Ky.),  645;  R.  776. 
156 


CHAP.  XV.]  EXCEPTIONS.  [§  219. 

truck  in  which  it  was  being  carried.  The  opinion  of  the  court 
is  in  these  words:  "Mr.  Bosauquet  says  it  is  not  found  that  the 
company  might  not  have  provided  such  trucks  that  no  bullock 
could  escape  under  any  circumstances  during  the  journey.  The 
judo-e  finds  that  the  truck  was  reasonably  fit  for  the  conveyance 
of  the  animal.  We  cannot  be  led  from  that  finding  by  a  sug- 
gestion that  some  possible  form  of  truck  might  be  devised 
wliich  would  prevent  the  recurrence  of  such  an  accident.  I 
think  the  finding  excluded  the  notion  of  negligence  on  the  part 
of  the  company  or  of  the  escape  of  the  bullock  from  any  other 
cause  than  from  its  own  inherent  vice  or  restiveness  or  frenzy 
and  for  such  an  injury  the  company  are  not  liable." 

To  the  same  eiiect  is  Illinois  Central  Railroad  Company  v. 
Hall.'  Here  the  bill  of  lading  provided  that  the  carrier  should 
not  be  liable  for  the  hogs  (the  stock  shipped)  jumping  from  the 
car.  The  shippers  had  selected  the  cars  to  be  used,  which  did 
not  belong  to  the  carrier,  but  to  another  railroad  company. 
The  hocrs  escaped  by  reason  of  the  imperfect  door  fastenings  of 
the  cars!  It  was  held  that  if  the  carrier  did  not  know  of  the 
defects  when  the  shippers  selected  the  cars  he  could  not  be  held 

for  the  loss. 

§  219.  The  consent  of  the  owner  of  the  stock  to  a  particu- 
lar method  of  shipment  will  not  necessarily  exonerate  the 
carrier  from  the  consequences  of  negligence.  In  Welsh  v. 
Pittsburgh,  etc.,  R.  R.  Company^  the  bill  of  lading  set  forth 
that  the  shipper  had  examined  the  cars  and  assumed  "all  risk 
arising  from  any  defect  in  the  body  of  the  car,  imperfect  doors 
and  fastenings,  overloading,  or  from  vicious  and  restive  ani- 
mals, delays;  or  from  any  other  cause  or  thing  not  resulting 
from  defective  trucks,  wheels,  or  axles."  Here,  too,  the  fasten- 
in"-8  of  the  doors  of  the  cars  were  defective  and  the  animals 

'  58  III.  409.     But  see  Oxley  v.  St.  an  open  window  In  the  car  and  it  ap- 

Louis,  etc.,  R.  R.  Co.,  65  Mo.  629.  peared  that  after  only  one  had  escaped 

2  10  O.  St.  65.     So,  too,  in  India-  the  shipper  had  requested  the  conduc- 

napolis,  etc.,  R.  R.  Co.  v.  Allen  (31  tor  of  the  train   to  fix   the   window, 

Ind.  394),  the  bill  of  lading  including  which  request  was  not  complied  with, 

the  exception    ''escaping."     Several  The  carrier  was  held  liable. 


of  the  animals,  hogs,  escaped  through 


157 


§  220.]  BILLS   OF   LADING.  [CHAP.  XV. 

escaped,  but  it  was  held  that  the  carrier  shonld  have  provided 
perfect  cars  and  was  liable,  the  exceptions  in  the  contract  to 
the  contrary  notwithstanding. 

§  220.  Where  straw  or  other  combustible  material  is  used 
for  the  bedding  of  live  stock  and  the  animals  are  injured  by 
this  catching  fire,  the  carrier  is  liable,  though  the  agent  of  the 
plaintift"  was  present  at  the  time  the  objectionable  material  was 
placed  in  the  car.*  In  Pratt  t;.  Ogdensburg,  etc.,  Railroad  Com- 
pany^ it  is  said  that  the  fact  that  the  shipper  knew  the  car  in 
which  the  carrier  proposed  to  ship  the  goods  was  unsafe,  does 
not  avail  the  carrier  as  an  excuse  for  using  such  cars  and  the 
Supreme  Court  of  the  United  States  have  apparently  approved 
of  this  proposition.^  That  the  owner  of  -the  stock,  or  his  ser- 
vant, has  been  allowed  passage  on  the  train,  so  that  he  may 
look  after  the  condition  of  the  animals,  will  not  conclusively 
exonerate  the  carrier.  Assuredly,  the  carrier  will  not  be  liable 
if  the  stock  is  lost  through  the  carelessness  of  the  attendant,^ 
but  the  carrier  cannot,  on  such  a  pretext,  evade  the  liability 
for  his  own  negligence.'*  Even  where  the  neglect  of  the  attend- 
ant, or  the  viciousness  of  the  animals,  has  contributed  to  the 
loss,  the  carrier  may  be  held  responsible.®  Causa  proxima  non 
remota  spectatur.  In  Rhodes  v.  Louisville,  etc..  Railroad  Com- 
pany,^ loss  "by  viciousness  of  the  animals"  was  included 
among  the  exceptions  of  the  bill  of  lading.  It  was  held  that 
the  proof  of  viciousness  would  not  exonerate  the  carrier  if  the 
cars  in  which  the  cattle  were  placed  were  defective.     In  Gill  v. 

'  Powell  V.  Penna.   R.   R.   Co.,  32  *  Wilson  v.  Hamilton,  4  O.  St.  723. 

Pa.  St.  414.  6  Smith  v.  New  Haven,  etc.,  R.  R. 

2  102  Mass.  557.  Co.,    12  Allen   (Mass.),   531;  Conger 

^  Ogdensburg,    etc.,  R.  R.  Co.   v.  v.  Hudson  River  R.  R.  Co.,  6  Duer 

Pratt,  22  Wall.   133.     Where  an   en-  (N.  Y.),  375  ;   Harris  v.  Northern  In- 

tire  car  is  chartered  to  a  person  for  his  diana  R.  R.  Co.,  20  N.  Y.  232  ;  Ohio, 

cattle,  and  he  (the  shipper)  has  charge  etc.,   R.   R.    Co.   v.   Dunbar,    20    111. 

of  the  loading  of  the  car,  the  company  623;  Hall  v.   Renfro,  3  Mete.   (Ky.) 

is  not  liable  for  a  damage  sustained  by  51  ;  Wilson   v.    Hamilton,    4    O.    St. 

improper  loading.     East  Tenn.  R.  R.  723. 

Co.  V.  Whittle,   27  Georgia,   535.     If  ^  Cases  foregoing. 

the  car  is  defective  the  company  is  ^  9  Bush  (Ky.),  688. 

liable  on  the  contract  to  hire,  but  not 

as  a  carrier. 

158 


CHAP.  XV.]  EXCEPTIONS.  [§  221. 

Manchester,  etc.,  Railway  Company ^  the  carrier  was  by  contract 
released  from  liability  for  loss  or  injury  in  the  delivery  of  the 
cow  shipped  by  plaintiff,  occasioned  by  "kicking,  plunging,  or 
restiveness."  When  the  cow  arrived  at  the  place  of  destination 
a  servant  of  the  defendants  was  about  to  unfasten  the  car  when 
he  was  warned  not  to  do  so.  He  persisted.  The  animal  ran 
out  and  after  rushing  about  the  yard  violently  for  some  time 
ran  upon  the  railway  tracks  and  was  killed  by  a  passing  train. 
The  court  held  that  the  carrier  was  liable. 

§  2-21.  The  carrier  is  bound  to  provide  against  escapes  by 
seeing  that  the  stock  is  properly  secured.  Where  a  dog  was 
delivered  to  be  carried,  but  not  being  properly  fastened,  slipped 
the  noose  about  his  neck  and  broke  loose,  the  carrier  was  held 
responsible  and  Lord  Ellenborough  said  that  since  the  carrier 
had  the  means  of  seeing  that  the  dog  was  insufficiently  tied,  he 
was  bound  to  lock  up  the  animal  or  take  other  proper  means 
to  secure  it.^ 

In  an  extreme  case  in  Mississippi  the  defendant  was  the 
keeper  of  a  public  ferry,  while  the  plaintiff  was  the  owner  of  a 
stage  coach  and  horses,  which  were  being  transferred  across  the 
ferry  for  hire.  The  driver  had  vacated  his  seat  and  fastened 
the  lines.  The  horses  became  restive  and  ran  out  of  the  boat 
into  the  river.  The  carrier  was  held  liable.^  This  is,  however, 
in  the  line  of  the  case  of  Porterfield  v.  Brooks,"  in  Tennessee, 
where  it  was  said  that  if  a  horse  escape  from  the  fastenings  on 
board  a  steamboat  and  be  lost  in  the  river,  the  owners  of  the 
boat  are  responsible,  for  the  horse  must  have  been  negligently 
fastened  or  the  loss  would  not  have  occurred,  and  jprima  facie 

1  L.  R.  8  Q.  B.  186.  Crawley.     First,  because  In  the  earlier 

2  Stuart  V.  Crawley,  2  Stark.  323.  case  the  defendants  were  common  ear- 
In  Richardson  v.  Northeastern  Ry.  riers,  and  in  the  case  at  bar  they  were 
Co.,  L.  R.  7  C.  P.  75,  this  case  is  not.  Second,  because  in  the  earlier 
distinguished.  Here  the  plaintiff  had  case  the  carrier  had  the  means  of  see- 
shipped  a  dog,  secured,  as  is  custom-  ing  that  the  animal  was  insufficiently 
ary,  by  a  collar  and  strap,  but  the  ani-  secured,  whereas  here  the  mode  of  se- 
mal  had,  nevertheless,  broken  loose,  curing  the  dog  was  that  ordinarily 
and  escaped.     Willis,    J.,    held    that  adopted. 

the   defendants  were  not   liable,   and         »  Powell  v.  Mills,  37  Miss.  691. 
that  the  case  differed  from  Stuart  v.        "  8  Humph.  (Tenn.)  497. 

159 


I  222.]  BILLS   OF   LADING.  [CHAP.  XV. 

this  neo-lio-ence  is  attributable  to  the  owners  of  the  boat  or  their 
servants. 

The  carrier's  liability  will,  however,  not  be  assumed.^  In  Ken- 
dall V.  London,  etc.,  Railway  Company^  the  plaintift'  delivered 
to  the  defendants  a  horse  to  be  carried  by  their  railway.  At  the 
end  of  the  journey  the  horse  was  found  to  be  injured.  No  acci- 
dent had  happened  to  the  train  and  the  defendants  were  guilty 
of  no  negligence.  The  cause  of  the  injuries  was  unknown,  ex- 
cept that  from  their  nature  they  appeared  to  have  been  caused 
by  the  horse  getting  down  upon  the  floor  of  the  horse  box. 
The  horse  was  quiet  and  accustomed  to  travel  by  rail.  It  was 
held  by  a  divided  court  that  the  defendants  were  not  liable 
since  it  was  to  be  inferred  that  the  injuries  resulted  from  the 
proper  vice  of  the  animal. 

§  222.  The  carrier  is  not  liable  for  the  loss  or  injury  to  live 
stock  arising  from  the  negligence  of  the  owner  in  not  being  at 
the  place  of  destination  to  receive  the  animals.  Where  a  horse 
was  sent  by  railway  and  the  sender  signed  a  contract  in  the 
following  terms:  "Mr.  Wise  paid  for  one  horse  12s.  6d.,  New- 
bury to  Windsor.  Notice — The  directors  will  not  be  answera- 
ble for  damage  done  to  any  horse  conveyed  by  this  railway," 
and  the  horse  arrived  at  Windsor  station  in  safety,  but  the 
owner  did  not  appear  to  claim  it  and  it  was  forgotten  and  left 
tied  in  a  horse  box  in  an  exposed  situation  for  twenty-four 
hours  and  was  injured  b}^  the  neglect,  it  was  held  that  though 
the  company  was,  to  a  certain  extent,  blamable,  they  were 
freed  under  the  contract.^ 

The  case  of  Nugent  v.  Smith*  has  been  already  commented 
upon.  Here  the  loss  of  a  mare  on  shipboard  was  due  partly  to 
the  tossing  of  the  vessel  and  partly  to  the  struggles  of  the  fright- 
ened animal.  The  court  below,  Mr.  Justice  Bret,  delivering 
the  judgment,  refused  to  consider  this  loss  the  act  of  God,  or 
"such  a  vice  in  the  inherent  nature  of  this  particular  mare  as 
would  absolve  the  defendant,"  but  on  appeal  this  judgment  was 

^  Morrison  v.  Construction  Co.,  44  ^  Wise  v.  Great  Western  Ry.  Co., 
Wise.  405,  and  cases  following.  25  L.  J.  Ex.  258. 

«  L.  R,  7  Ex.  373.  •«  L.  R.  1  C.  P.  D.  19,  423. 

160 


CHAP.  XV.] 


EXCEPTIONS. 


[§  223. 


reversed  and  the  carrier  was  exonerated.  In  Gabay  v.  Lloyd,^ 
where  horses  were  being  transported  by  water  and  during  a 
severe  storm,  they  broke  down  the  partitions  separating  them 
and  by  kicking  severely  injured  each  other.  This  was  held  to 
fall  within  the  exception  "  perils  of  the  sea."^ 

§  223.  There  are  numerous  rulings  to  the  etiect  that  "fire"  is 
not  to  be  considered  as  among  the  causes  of  loss  covered  by  the 
common  law  exception,  "  the  act  of  God,"  except  in  the  one  case 
of  fire  caused  by  lightning.^  Neither  is  it  included  in  the  more 
comprehensive  exceptions  usually  expressed  in  bills  of  lading 
as  "  unavoidable  dangers,"^  "  perils  of  the  sea,""  "  perils  of  the 
river^  (or  road),"  etc.  It  is  therefore  necessary  that  to  free  the 
carrier  from  responsibility  for  this  sort  of  loss  an  express  ex- 
ception to  that  eflect  should  be  introduced   into  the  bill  of 


lading.^ 

13  B.  &  C.  793 ;  Lawrence  v. 
Aberdeen,  5  B.  &  Aid.  107. 

2  The  owner  of  a  horse,  injured 
while  in  the  carrier's  hands,  may 
maintain  an  action  against  the  carrier 
for  the  injury,  notwithstanding  he 
(the  shipper)  has  not  given  him  (the 
carrier)  notice  of  the  iiy'ury,  or  offered 
the  horse  to  him  to  be  cared  for.  Ev- 
ans V.  Dunbar,  \\1  Mass.  546. 

'  Story  on  Bailments,  §§  511,  528; 
Abbott  on  Shipping,  *p.  389  (7th  Am. 
ed.)  and  cases  cited ;  Forward  v.  Pit- 
tard,  1  T.  R.  27;  Hyde  v.  Trent. 
Nav.  Co.,  5  ib.  389;  Thorogood  v. 
Marsh,  1  Gow.  N.  P.  C.  105;  Gat- 
liffe  V.  Bourne,  4  Bing.  N.  C.  314; 
Parsons  v.  Monteath,  13  Barb.  (N. 
Y.)  353;  Miller  v.  Steam  Nav.  Co., 
10  N.  Y.  431  ;  McArthur  v.  Sears, 
21  Wend.  (N.  Y.)  190;  Hall  v.  Che- 
ney, 36  N.  H.  26  ;  Moore  v.  Mich. 
Cent.  R.  R.  Co.,  3  Mich.  23  ;  Cox  v. 
Peterson,  30  Ala.  608  ;  Chevallier  v. 
Straham,  2  Tex.  115;  Patton  v.  Ma- 
grath,  Dudley  (S.  C),  159. 

Fire  started  by  the  bursting   of  a 
steam  boiler  is  not  the  "act  of  God." 
11 


Bulkley  v.  Naumkeag  Cotton  Co.,  24 
Howard,  386;  McCall  v.  Brock,  5 
Strob.  (S.  C.)  J 19.  Neither  is  fire 
caused  by  the  machinery  of  the  vessel. 
Hale  V.  New  Jersey  Steam  Nav.  Co., 
15  Conn.  539  ;  or  by  the  bursting  of 
a  cask  containing  chloride  of  lime. 
Brousseau  v.  The  "Hudson,"  11  La. 
Ann.  Rep.  427. 

*  Union  ISIutual  Ins.  Co.  v.  Indian- 
apolis, etc.,  R.  R.  Co.,  1  Disney  (().), 
480. 

5  Merril  v.  Arey,  3  Ware  (U.  S.  D. 
C),  215. 

*  Cox  V.  Peterson,  30  Ala.  608  ; 
Gilmore  v.  Carman,  1  S.  &  M.  (Miss.) 
303  ;  Garrison  v.  Memphis  Ins.  Co.,  19 
Howard,  312  ;  New  Jersey  Steam  Nav. 
Co.  V.  Merchants'  Bank,  6  ib.  344. 

In  Sampson  v.  Gazzam,  6  Porter 
(Ala.),  123,  it  was  said  that  it  is  ad- 
missible to  prove  that  the  phrase 
"dangers  of  the  river"  by  custom 
and  general  understanding  includes  a 
loss  by  fire.  See  also  Hibler  v.  Mc- 
Cartney, 31  Ala.  501. 

T  Faulkner  v.  Hart,  82  N.  Y.  413  ; 
S.    C.    37    Am.    Rep.  574,  reversing 

161 


223.] 


BILLS   OF   LADING. 


[chap.  XV. 


The  effect  of  such  an  exception  is  to  relieve  the  carrier  from 
liability  in  all  cases  of  loss  by  fire  except  for  such  loss  as  is 
directly  traceable  to  his  own  or  his  servant's  negligence.^     It 


Faulkner  v.  Hart ;  Moore  v.  Mich. 
Central  R.  R.  Co.,  3  Mich.  23; 
Parker  v.  Flagg,  26  Me.  181  ; 
Plaisted  v.  Boston,  etc.,  S.  N.  Co., 
27  ib.  135. 

In  Menzell  v.  R.  R.  Co.,  1  Dillon's 
C.  C.  531,  there  was  a  special  contract 
for  the  transportation  of  the  plaintiff'' s 
goods,  which  provided,  inter  alia:  "I 
hereby  release  said  company  from  any 
and  all  d;image  that  may  occur  to 
said  goods  arising  from  leakage  or  de- 
cay, chafing,  or  breakage,  or  from  any 
other  cause  not  the  result  of  collision 
of  trains  or  of  cars  being  thrown  from 
the  track  while  in  transit."  Judge 
Dillon  said  :  "  Construing  this  general 
and  indefinite  language  conformably 
to  the  rules  adopted  by  courts  in  the 
interpretation  of  contracts  of  this  kind, 
it  is  my  opinion  that  it  does  not  plainly 
or  satisfactorily  appear  therefrom  that 
the  parties  intended  thereby  to  exempt 
the  company  from  liability  for  a  total 
loss  or  destruction  of  the  goods  by  fire, 
even  thouffh  the  fire  were  accidental 
and  without  fault  on  the  part  of  the 
company,  its  agents,  or  servants." 
Ching  Hong  &  Co.  v.  Seng  Moh  & 
Co.,  3  L.  R.  4  Col.  Ser.  736. 

In  an  action  brought  to  recover  the 
value  of  cotton  destroyed  by  fire,  where 
no  bill  of  lading  had  been  given,  the 
Illinois  Sl^^reme  Court  excluded  evi- 
dence of  a  usage  long  standing  on  the 
defendants'  (a  large  railroad  corpora- 
tion) part,  and  well  understood  by  the 
shippers  at  the  point  in  (juestion,  to  give 
bills  of  lading  exempting  themselves 
from  liability  for  fire.  Illinois  Cen- 
tral R.  R.  Co.  r.  Smyser,  38  111.  354. 
162 


The  opinion  of  Cowen,  J.,  in  Gould 
V.  Hill,  2  Hill  (N.  Y.),  623,  that  car- 
riers cannot  limit  their  liability  for  loss 
by  fire  by  express  agi-eement,  was  spe- 
cifically overruled  in  New  York  nine 
years  later  in  Parsons  v.  Monteath,  13 
Barb.  (N.  Y.)  353. 

'  York  Co.  V.  Central  R.  R.  Co., 
3  Wall.  107;  Muser  v.  Holland,  17 
Blatch.  412;  Insurance  Co.  of  North 
America  v.  St.  Louis,  etc.,  R.  R.  Co., 
3  McCreary,  233  ;  Scruggs  v.  B.  &  0. 
R.  R.  Co.,  5  ib.  590  ;  Mercantile  In- 
surance Co.  V.  Chase,  1  E.  D.  Smith 
(N.  Y.),  115;  Manhattan  Oil  Co.  v. 
Camden,  etc.,  R.  R.  Co.,  54  N.  Y. 
197;  Germania  Fire  Ins.  Co.  r.  Mem- 
phis, etc.,  R.  R.  Co.,  72  ib.  90  ;  Whet- 
worth  V.  Erie  R.  R.  Co.,  87  ib.  414  ; 
Farnham  v.  Camden,  etc.,  R.  R.  Co., 
55  Pa.  St.  53 ;  Colton  v.  Cleveland, 
etc.,  R.  R.  Co.,  67  ib.  211  ;  Grace  v. 
Adams,  100  Mass.  505;  Pembertpn 
Co.  V.  New  York  Central  R.  R.  Co., 
104  ib.  144  ;  Erie  R.  R.  Co.  v.  Wil- 
cox, 84  111.  239;  JNIerchants',  etc.. 
Transportation  Co.  v.  Leyser,  89  111. 
43  ;  Union  Express  Co.  v.  Graham, 
26  O.  St.  595;  U.  S.  Express  Co. 
V.  Blackman,  28  ib.  144;  Michigan 
Southern,  etc.,  R.  R.  Co.  v.  Heaton, 
37  Ind.  448;  Montgomery,  etc.,  R. 
R.  Co.  V.  Edmonds,  41  Ala.  66  7; 
New  Orleans  Mutual  Ins.  Co.  v.  New 
Orleans,  etc.,  R.  R.  Co.,  20  La.  Ann. 
Rep.  302  ;  Levyr.  Pontchartrain  R.  R. 
Co.,  23  ib.  47  7  ;  New  Orleans,  etc.,  R. 
R.  Co.  V.  Faler,  58  Miss.  911  ;  Hunters 
11.  "The  Morning  Star,"  Newfound- 
land, 270;  Louisville,  etc  ,  R.  R.  Co.  i-. 
Oden,   80    Ala.  38;   L.   K.   M.   R.  & 


CHAP.  XV.]  EXCEPTIONS.  [§  225. 

is  immaterial  whether  the  fire,  if  not  the  result  of  negligence, 
was  unavoidable  or  not.  Neither  does  the  fact  that  the  lire  was 
the  work  of  an  incendiary  or  was  due  to  the  carelessness  ot 
stran-ers,  affect  the  carrier's  liability.^  The  existence  ot  the 
exception  in  a  bill  of  lading,  however,  in  no  way  interferes 
with  the  ordinary  liability  of  the  ship-owner  to  contribute,  as 
such,  to  general  average  when  a  fire  occurs  and  a  sacrifice  is 
properly  made  to  save  the  whole  adventure.^ 

§  224.  What  is  "loss  by  fire?"  Here,  as  with  other  excep- 
tions, the  doctrine  of  proximate  cause  obtains.  That  is  "loss 
by  fire"  in  which  fire  was  the  direct  and  immediate  cause  of 
chima<>-e.  The  fact  that  the  fire  was  carried  a  great  distance  to 
the  goods  by  an  unusually  high  wind  does  not  aflect  the  ques- 
tion1)f  loss  to  render,  it  attributable  to  the  wind  rather  than 
the  fire.3  Such  a  combination  of  circumstances  will  not  bring 
the  loss  under  the  exception  "  the  act  of  God." 

Fire  originated  by  an  explosion  of  the  boiler  of  the  engine 
of  the  ste^imboat*  or  by  an  explosion  among  the  cargo*^  is 
within  the  exception.  The  term  includes  fire  however  caused 
and  is  not  restricted  to  fire  originating  in  the  boat's  furnace.^ 

§  225.  Where,  however,' fire  is  merely  an  incident  to  loss  by 
other  means,  the  exception  does  not  apply ;  as  where  the  proxi- 
mate cause  of  the  loss  was  a  collision  and  after  the  collision  the 
wreck  took  fire.^  It  is  upon  this  ground  that  the  principle  of 
the  liability  of  the  common  carrier  for  negligence,  in  spite  of  the 
express  exception,  is  to  be  maintained.  The  carrier  excepts  to 
be  free  from  loss  by  fire,  but  where  the  damage  is  caused  sec- 

-T     R     Co.    V.    Talbot,   47    Ark.   97;  R.    Co.    v.    Fries,    87    Pa.    St.    234; 

Louisville,   etc.,    Ry.    Co.    v.   Gilbert  Chevallier  i..  Straham,  2  Tex.  115 

(Tenn  )     12  S.  W.  Rep.  1018.  *  Bulkley  v.  Naumkeaji  Cotton  Co., 

.  Colt'on  V.   Cleveland,   etc.,   R.  R.  24  Howard,  386  ;  McCall  v.  Brock,  .5 

Co      67   Pa.   St.    211;     Pennsylvania  Strob.  (S.  C.)  119. 

R.     R.     Co.     V.    Fries,    87   ib.    234;  s  Brousseau  v.  The  "  Hudson,"   U 

Werthemier    v.    Pennsylvania   R.    R.  La.  Ann.  Rep.  427. 

Co.    17  Blatchf.  421.  ^  Swindler  v.  Hilliard,   2  Ricf  (S. 

2'schmidt  V.  Royal  Mail  S.  S.  Co.,  C),  286. 

45  L.  J.  Q.  B.  Div.  646.  '  The  "  City  of  Norwich,"  3  Ben. 

3  Parsons  v.  Monteath,  13  Barb.(N.  575.      Here  the  collision  was  caused 

Y.)  353  ;   I^Iiller  v.  Steam  Navigation  by   negligence,    and    the    carrier  was 

Co     10   N.  y.  431  ;  Pennsylvania  R.  held  liable  on  this  ground. 

163 


§  226.] 


BILLS   OF   LADING. 


[chap.  XV. 


onclarilj  bj  fire  but  primarily  by  his  own  or  his  servant's  neg- 
ligence the  exception  has  properly  no  ajiplication,'  It  is  not 
sufficient  that  negligence  be  merely  shown.  It  must  be  shown 
to  have  been  the  proximate  cause  of  loss.^  It  must  be  shown  to 
have  caused  or  to  have  at  least  contributed  to  the  injury.' 

^  226.  The  exception  "fire"  will  not  relieve  the  carrier  where 
negligence  of  himself  or  his  employes  has  been  shown.  This  is 
true  even  where,  as  in  JSTew  York,  it  has  been  said  that  a  carrier 
may  by  contract  exclude  his  liability  for  negligence.  Not  hav- 
ing done  so  he  is  none  the  less  liable  than  he  would  be  if  the 
law  were  as  in  other  States.* 

The  question  of  what  is  negligence  is  not  properly  within  the 


^  If  the  analogies  of  the  law  of  in- 
surance are  to  be  followed,  the  car- 
rier's exception  will  relieve  him  from 
liability  for  loss  where  the  goods  have 
been  burned  b}-  the  civil  authorities 
through  fear  of  contagious  disease. 
Pattison  v.  Mills,  1  Dow  &  C.  342  ; 
•2  Bligh  (N.  S.),  519;  Parsons  on 
Marine  Insurance,  I.,  ch.  xvii.,  §  4, 
p.  558,  or  where  burned  to  save  them 
from  capture  by  the  public  enemy. 
Gordon  v.  Remmington,  1  Camp.  123. 
In  the  latter  event  it  might  be  urged 
that  the  loss  would  fall  rather  under 
the  exception,  the  public  enemy,  and 
that  the  carrier  would  be  exempted  by 
common  law. 

An  interesting  (question  in  the  law  of 
insurance  does  not  seem  to  have  met 
with  a  corresponding  development  in 
respect  to  the  carrier's  liability  under  a 
bill  of  lading,  namely  :  Does  the  ex- 
emption from  liability  for  loss  bj-  fire 
also  relieve  him  in  the  case  of  loss  from 
the  injurious  effects  of  fire  ?  The  law 
with  respect  to  the  responsibility  of 
an  insurer,  as  shown  by  Mr.  Parsons 
in  his  admirable  treatise  on  Marine 
Insurance  (p.  558  and  cases  cited), 
may  be  briefly  stated  thus  :  The  term 
fire  in  a  policy  of  insurance  includes 

164 


loss  not  merely  by  burning  but  also 
loss  by  the  ordinary  but  not  the  ex- 
traordinary effects  of  fire.  The  ordi- 
nary effects  of  fire  have  been  held  to 
include  injuries  sustained  from  en- 
deavors to  arrest  and  to  prevent  fire 
(City  Ins.  Co.  v.  Corlies,  21  Wend. 
367),  as  where  goods  are  damaged 
by  the  water  from  engines.  Case  v. 
Hartford  Ins.  Co.,  13  111.  676. 

The  fire,  however,  must  be  an  ac- 
tual conffagration.  The  phrase  does 
not  contemplate  damage  done  by  the 
heat  of  an  excessive  fire  in  a  furnace 
or  stove.  Austin  v.  Drew,  4  Camp. 
360. 

But  damage  caused  by  an  explosion 
of  gunpowder  is  a  loss  by  fire.  Scrip- 
ture V.  Lowell  Ins.  Co.,  10  Cush. 
(Mass.)  356. 

^  Chalk  V.  Charlotte,  etc.,  R.  R. 
Co.,  85  N.  C.  423. 

"  Cochran  v.  Dinsmore,  49  N.  Y. 
249. 

■*  Stedman  v.  Western  Transporta- 
tion Co.,  48  Barb.  (N.  Y.)  97;  Lamb 
r.  Camden,  etc.,  11.  R.  Co.,  2  Daly 
(N.  Y.),  454  ;  Same  v.  Same,  46  N. 
Y.  271  ;  Condict  v.  Grand  Trunk  R. 
R.  Co.,  54  ib.  500  ;  Little  Rock,  etc., 
Ry.  Co.  V.  Talbot,  47  Ark.  97. 


CHAP.  XV.] 


EXCEPTIONS. 


[§  226. 


limits  of  this  treatise.  It  has  always  been  held  to  be  a  matter 
to  be  determined  by  the  circumstances  of  each  case.^  It  is, 
however,  to  be  noted  that  the  negligence  which  will  render  a 
carrier  liable  includes  both  the  lack  of  due  care  in  keeping  the 
goods  before  the  fire  originated  and  the  neglect  to  make  all 
possible  effort  to  save  them  after  the  fire  broke  out.^ 

Notice  by  the  carrier  to  the  shipper  that  he  is  about  to  commit 


1  It  may,  however,  be  not  without 
practical  value  to  append  a  list  of  de- 
cisions as  to  what  is  negligence  in  ex- 
actly this  connection.     The  following 
acts,  or  omissions  have  been  decided  to 
constitute  negligence  :    A  defect  in  the 
fitting  up  of  a  vessel,  by  which  the  fire 
was  caused,  Hunters  v.  The   "Morn- 
ing   Star,"   Newfoundland,  270;    the 
carrying    bale    cotton    on    open   cars 
drawn    by   an    engine    not    provided 
with   a   proper    spark   arrester,    New 
Orleans,    etc.,    R.    R.    Co.  v.   Faler, 
58    Miss.    911  ;    neglect   to   fulfil   the 
terms  of  an  agreement  specifying  that 
the   goods    shall    be    carried   without 
transfer,  Stewart  v.  Merchants'  Trans. 
Co.,   47  la.   229;    the  failure  to  pro- 
tect cotton  in  transit  as  provided  by 
Act   of   Congress   of    25   July,    1866 
(since  repealed).  Grey's  Executors  o. 
Mobile  Trans.  Co.,  55  Ala.  387  ;  not 
sending   prompt   notice    to    the   con- 
signee of  the   arrival   of    the   goods. 
Union   Steamboat   Co.  v.  Knapp,   73 
111.   506  ;  but  two  days'  notice  is  suf- 
ficient   notice,    and   will    relieve    the 
carrier   from   the    liability   for    negli- 
gence. Chalk  V.  Charlotte,  etc.,  R.  R. 
Co.,  85  N.  C.  423.     Where  the  con- 
signee lived  about   one  hundred  rods 
from  the  express  office  and  was  well 
known,  and   the  goods   were  sent  by 
a  circuitous  route  and  arrived  late  in 
the  day,    and  no  effort  was    made  to 
inform  the  consignee  or  to  deliver  the 
goods  ;  this  was  held  to  be  negligence. 


Union    Express   Co.   v.   Ohieman,   92 
Pa.  St.  323. 

Putting  the  plaintiff's  goods  in  close 
proximity  to  a  large  quantity  of  pow- 
der is  negligence,  White  i'.  Colorado 
Central  R.  R.  Co.,  5  Dillon,  428; 
but  the  erection  of  a  steam  cotton- 
press  on  the  carrier's  premises,  by 
which  the  chance  of  fire  was  in- 
creased, is  not  pel'  se  negligence. 
Chalk  V.  Charlotte,  etc.,  R.  R.  Co., 
85  N.  C.  423. 

In  the  recent  case  of  McFadden  v. 
Mo.  Pac.  Ry.  Co.,  92  Mo.  343,  it  was 
held  that  the  loss  of  mules  by  fire  where 
they  were  shipped  in  a  car  bedded  with 
straw  next  to  the  engine,  and  the  straw 
ignited  from  sparks  from  the  engine, 
was  caused  by  the  negligence  of  the 
company,  which  was  liable,  although 
the  bill  of  lading  contained  an  exemp- 
tion from  loss  by  fire. 

If  the  vessel  be  shown  to  have  been 
ordinarily  well  protected  against  fire, 
there  is  no  presumption  of  negligence 
to  be  drawn  from  the  fact  that  the 
vessel  was  on  fire. 

The  employment  of  the  phrase 
"loss  by  fire  unless  from  gross  negli- 
gence" seems  in  no  way  to  change  the 
carrier's  responsibility.  Adams  Ex- 
press Co.  V.  Sharpless,  77  Pa.  St.  516. 
See  also  Southern  Express  Co.  v. 
Kaufman,  12  Heisk.  (Tenn.)  161. 

2  Erie  R.  R.  Co.  v.  Lockwood,  28 
O.  St.  358. 

165 


§  227.]  BILLS    OF    LADING.  [CHAP.  XV. 

an  act  of  negligence  will  not  relieve  the  former  from  liability. 
Thus,  if  placing  goods  on  a  flat  car  for  transportation  is  negli- 
gence, it  is  no  clefence  that  notice  of  the  intention  to  do  so  was 
given  by  the  carrier  at  the  time  of  shipment.^ 

§  227.  It  is  clear  that  the  burden  of  showing  a  loss  to  have 
been  within  the  exception  is  on  the  carrier  himself.  The  fact 
of  the  destruction  by  tij-e  must  be  proved  by  him.^  Is  the  bur- 
den then  shifted  and  does  it  then  become  incumbent  on  the 
plaintiff  to  prove  the  negligence  of  the  carrier  in  order  to  enti- 
tle him  to  recover?  It  has  been  seen  that  in  the  case  of  the 
exception  "  the  act  of  God,"  it  may  be  stated  as  a  general  pro- 
position that  in  England  and  in  most  of  the  States  of  the  United 
States,  the  onus  is  not  on  the  owner,  while  in  Ohio,  Sduth 
Carolina,  Georgia,  Alabama,  and  Mississippi  it  has  been  ex- 
pressly held  that  the  burden  of  proving  the  absence  of  negli- 
gence is  on  the  carrier  himself.  It  remains  to  be  considered, 
whether  any  distinction  in  this  respect  is  to  be  found  between 
the  exceptions  mentioned  and  the  exception  "loss  by  tire." 
In  Patterson  v.  Clyde,^  Mr.  Justice  Agnew  distinctly  affirms 
that  such  a  distinction  exists.  He  finds  the  reason  for  the 
law  in  the  case  of  "  perils  of  the  sea  (or  river),"  in  the  fact 
that  without  the  proof  of  the  circumstances  it  would  be  impos- 
sible to  say  whether  the  loss  arose  from  the  dangers  of  naviga- 
tion or  not.  "  Such  a  peril  can  only  be  known  from  its  facts. 
The  striking  of  the  boat  upon  a  stone  or  rock  in  the  canal  may 
or  may  not  fall  within  the  exception.  For  instance,  if  the  stone 
from  its  position  may  be  readily  seen  and  avoided  by  those  in 
the  boat,  or  although  not  visible,  yet  if  its  situation  be  gener- 
ally known  the  loss  ought  to  be  imputed  to  the  fault  of  the 
captain  or  those  showing  the  direction  of  the  boat.  But  if,  on 
the  other  hand,  it  was  not  known,  and  was  invisible  to  the 
common  eye,  the  loss  occasioned  by  the  boat  striking  upon  it 
ought  to  be  considered  as  coming  within  the  exception  which 
embraces  all  dang-ers  of  the  navio-ation.  Thus  it  is  evident  that 
a  peril  of  navigation  is  a  thing  having  no  definite  fact  to  rest 

'  Montgomery,  etc.,   R.   R.   Co.   v.  (69   Mass.),    342;   Shaw  v.   Gardner, 

Edmonds,  41  Ala.  6G7.  12  ib.  (78  Mass.)  488;    Chicago,  etc., 

2  Greenleaf  on  Evidence,  II.  §  219,  R.  R.  Co.  v.  Moss,  60  Miss.  1003. 

and  note;   Alden   v.   Pearson,  3  Gray  »  gj  p^^    gt.  500. 

166 


CHAP.  XV.]  EXCEPTIONS.  [§  229. 

upon  in  the  writing,  but  must  be  made  to  appear  in  the  very 
facts  of  the  loss.  But  not  so  as  to  a  loss  by  tire,  wh.ch  is  a  spe- 
cific thing,  and  determines  at  once  the  character  of  the  loss 
The  fire  is  the  very  thing  provided  for  in  the  exception,  and 
when  the  loss  is  shown  to  have  arisen  from  a  hre  which  con- 
sumes  vessel  and  cargo,  the  thing  excepted  is  proved  ihis 
excepted  peril  is  shown  to  have  caused  the  loss  and  to  add  more 
to  the  evidence  is  to  alter  the  terms  of  the  contract."  _ 

8  908  The  Ohio  doctrine  is  unquestionably  opposed  to  this 
distinction.^  "We  have  been  requested  to  review  this  cloc- 
trine,"  said  the  Supreme  Court  of  that  State  m  U.  S.  Jix- 
press  Company  v.  Backman,^  "in  view  of  such  respectable 
authority  as  hold  the  contrary  to  be  the  true  rule  We  think 
the  wei-ht  of  authority  is  in  accord  with  the  holding  m  Ohio, 
and  we  do  not  think  public  interests  would  be  advantaged  by  a 
change  of  the  rule."^  . 

§  229.  The  carrier  is  liable  for  loss  by  the  negligence  of  his 
servant  The  fact  that  the  servant  or  agent  was  a  corporation 
does  not  affect  the  question  of  liability.  In  Bank  of  Kentucky 
V  Adams  Express  Company  the  express  company  had  contracted 
to  carry  the  goods,  "loss  by  fire"  being  among  the  exceptions. 
The  goods  were  sent  by  train  over  the  Louisville  and  Nashville 
Railroad  in  charge  of  a  messenger  of  defendant  and  through  the 
neo-lio-ence  of  the  railroad  company,  were  destroyed  by  fire,  in 
the  Circuit  Court  it  was  held  that  the  railroad  company  was 

t  Welsh  V  P.  F.  W.  &  C.  R.  R.  Little  Rock,  etc.,  R.  R.  Co.,  39  lb. 
Co,  10  O.St.  69;  U.  S.  Express  Co.  148;  Little  Rock,  etc.,  R.  R^  Co.  v 
V.  Graham,  26  ib.  595.  Talbot,  ib.  523  ;   Denton  ..   C.   R.   L 

2  28  ib   i44  &  P-  ^-  ^-  ^"^  ^"^  ^^-  ^^^  '  '' 

3  The  onus'  is  on  the  plaintiff  (in  C.  &  N.  W.  R.  R.  Co.,  30  la.  420; 
case  of  fire).  Wertheimer  i;.  Penna.  Union  Steamboat  Co.  v.  Kmipp,  M 
R  R.  Co.,  17  Blatchf.  421;  Hall  ..  HI.  506;  The  "Emily''  v.  Carney,  5 
Penna  R  R.  Co.,  14  Phila.  414;  Kansas,  645 ;  Frank ..  Adams^Lxpress 
Cochnin  ..  Dinsmore,  49  N.  Y.  249  ;  Co.,  18  La.  Ann.  Rep.  279.  The  onus 
Earnham  ..  Camden,  etc.,  R.  R.  Co.,  is  on  the  earner,  Chicago,  etc  R.  R. 
55  Pa  St.  53  ;  Sherman  ..  Penna.  R.  Co.  ..  Moss,  60  Miss.  1003  ;  Singleton 
R  Co.,  8  W.  N.  C.  269 ;  Colton  ..  ..  Hilliard,  1  Strobt  (S.  C.)  03 ;  Ene 
Cleveland,  etc.,  R.  R.  Co.,  67  Pa.  St.  R.   R.   Co.   ..   Lockwood,   28  O.   St. 


211  ;  Little  Rock,  etc.,  R.  R.  Co.  v.     350. 
Corcoran,    40    Ark.    375;    Taylor   v.. 


167 


§  231.]  BILLS    OF   LADING.  [CHAP.  XV. 

not  in  any  legal  sense  the  servant  of  the  defendant,  but  in  the 
Supreme  Court  of  the  United  States  this  decision  was  reversed 
and  the  doctrine,  as  stated  above,  announced.^ 

Where  the  fire  is  the  work  of  a  mob  of  strikers,  formerly 
the  employes  of  the  companj',  the  fact  that  the  loss  was  actu- 
ally due  to  the  acts  of  the  defendant's  servants  must  be  shown.^ 
It  does  not  appear  to  be  enough  to  show  simply  that  the  riot 
was  begun  in  a  strike  of  the  defendant's  employes  and  that 
the  fire  was  the  work  of  the  rioters. 

§  230.  The  exception  "  fire"  in  a  bill  of  lading  is  to  be  strictly 
interpreted.  Where  goods  were  sent  by  a  carrier  over  a  line 
necessitating  carriage  both  by  rail  and  by  .water  and  the  bill  of 
lading,  excepted  " dangers  of  navigation,  fire,  and  collision  on  the 
lakes  and  river  and  on  the  Welland  Canal,"  it  was  held  that  the 
limitation  did  not  extend  to  a  loss  by  fire  on  the  railroad. ^  The 
exception  does  not  entitle  the  carrier  to  freight  on  the  goods 
destroyed,  but  simply  protects  him  from  liability  for  their  loss.* 

§  231.  The  exception,  however,  is  co-extensive  with  the  lia- 
bility. It  is  co-extensive  in  point  of  time.  The  master  of  a 
vessel  transporting  goods  under  a  bill  exempting  him  from  lia- 
bility for  loss  by  fire  and  landing  them  at  port  of  discharge  is, 
so  long  as  the  goods  remain  in  his  custody  after  being  landed, 
protected"  by  the  exception  in  his  bill.*  The  carrier,  to  claim 
the  benefit  of  the  exception,  must  have  fulfilled  his  part  of 
the  agreement.  An  infringement  of  the  Sunday  law  of  the 
State  by  the  carrier,  followed  by  loss  by  fire,  will  not  render 
the  carrier  liable  when  protected  by  the  exception.^  Where 
the  carrier  stipulates  in  the  bill  of  lading  that  he  will  carry  the 
goods  to  their  destination  without  transfer,  in  cars  owned  and 
controlled  by  himself  and  he  fails  to  do  so,  he  cannot  avail 
himself  of  the  restriction  of  his  common  law  of  liability.^ 

'  1  Flippiii,242.  In  Supreme  Court,  ^  Hong  Kong,  etc.,  Corp.  v.  Bake, 

93  U.  S.  174.  7  Bom.  H.  C.  Rep.  207. 

2  Werthelmer  v.  Penna.  R.  R.  Co.,  ^  Wilde    v.    Merchants'     Dispatch 

17  Blatchf.  421.  Trans.  Co.,  47  la.  272. 

"  Barter  v.  Wheeler,  49  N.  H.  9.  ^  Stewarts.  Merchants'  Trans.  Co., 

*  New  York  Central  &  H.   R.   R.  47  la.   229;   Robinson  v.  Merchants' 

R.  Co.,  20  Hun  (N.  Y.),  39.  Trans.  Co.,  45  ib.  470. 
168 


CHAP.  XV.]  EXCEPTIONS.  [§  232. 

§  232.  In  England,  the  Merchant  Shipping  Act  of  1854,^  pro- 
vides, inter  alia,  "  that  no  owner  of  any  sea-going  ship,  or  share 
therein,  shall  be  liable  to  make  good  any  loss  or  damage  that 
may  happen  without  his  actual  fault  or  privity  of,  or  to  any  of 
the  following  things  (that  is  to  say):  1.  Of  or  to  any  goods, 
merchandise,  or  other  things  whatsoever  taken  in  or  put  on 
board  any  such  ship,  by  reason  of  any  fire  happening  on  board 
said  ship." 

The  Act  of  Congress  of  March  3,  1851-,2  substantially  follows 
the  British  statute :  "  N'o  owner  of  any  vessel  shall  be  liable 
to  answer  for  or  make  good  to  any  person  any  loss  or  damage 
which  may  happen  to  any  merchandise  which  shall  be  shipped, 
taken  in  or  put  on  board  any  such  vessel,  by  reason  of  or  by 
means  of  any  fire  happening  to  or  on  board  the  vessel,  unless 
such  fire  is  caused  by  the  design  or  neglect  of  such  owner." 

The  effect  of  these  acts  certainly  is  (within  those  cases  to 
which  they  apply)  to  superadd  to  the  exceptions  existing  at 
common  law,  the  exception  contained  in  the  statute  and  as  a 
contract  is  supposed  to  be  made  with  a  view  to  the  general  law 
relative  to  the  subject-matter,  such  an  exception  is  to  be  re- 
garded as  written  into  all  contracts  to  carry  to  which  the  stat- 
utes apply.^ 

The  master  of  the  vessel  is  not  protected  bj^  the  provisions 
of  these  acts,  so  it  would  seem  that  he  is  excluded  from  the 
benefit  of  the  limitation  unless  fire  be  specially  named  among 
the  exceptions  of  the  bill  of  lading.* 

It  has  been  decided  that  the  American  act,  although  it  ex- 
cepts inland  navigation,  nevertheless  applies  to  commerce  be- 
tween the  States  f  that  navigation  on  the  great  lakes  is  within 
the  contemplation  of  the  statute  and  hence,  that  where  goods 

1  17  and  18  Vict.  c.  104,  §  503,  re-  owners  were  held  responsible,  as  at 
enacting  26  G.  III.,  c.  86,  §  2.  common  law,  the  case  not  being  within 

2  C.  43,  §  1,  V.  9  (p.  635);  Rev.  the  meaning  of  the  statute.  Morewood 
Stat.  U.  S.,  p.  827,  §  4282.  v.   Pollock,    1  E.  &  B.  743  ;  22  L.  J. 

3  Torrance  v.  Smith,  3  Upper  Can-  Q.  B.  250. 

ada  C.   P.  411.     Where  goods  were  *  Abbot  on  Shipping  (7th  American 

destroyed   by  fire  while   on   board   a  Ed.),  *  page  389. 

lighter  belonging  to  the  owners  of  the  ^  Headrick  v.  V.  &  T.  A.  L.  R.  R. 

ship,   for  the   purpose  of  being   con-  Co.,48Ga.  545. 

veyed  from  the  shore  to  the  ship,  the 

169 


I  233.]  BILLS    OF   LADING.  [CHAP.  XV. 

were  destroyed  by  fire  upon  the  steamboat  of  a  defendant  in 
the  harbor  of  Buffalo  (without  uegligence  on  the  part  of  the 
carrier)  he  cannot  be  held  liable.^ 

Do  these  statutes  affect  the  liability  for  a  loss  by  negligence? 
The  possibility  of  such  a  construction  of  the  act  of  17th  and 
18th  Yict.  does  not  seem,  in  England,  to  have  been  mooted. 
The  American  act  is  somewhat  different.  It  will  be  seen  that 
loss  by  fire  caused  by  "design  or  neglect"  of  the  owner  is  ex- 
pressly taken  out  of  the  operation  of  the  act,  impliedly,  it 
would  seem,  relieving  the  owner  from  all  responsibility  for  the 
acts  of  any  parties.  Following  this  view,  the  Supreme  Court 
in  Walker  v.  The  Transportation  Company ,2  have  held  that  the 
act  relieves  owners  from  responsibility  for  the  negligence  of 
their  officers  and  agents  in  which  they  have  not  directly  parti- 
cipated and  Hoffman,  Cir.  J.;  has  decided  in  Keene  v.  Whis- 
tler,2  that  the  act  relieves  part  owners  from  the  eftect  of  the 
negligence  of  a  master. 

§  233.  The  third  section  of  the  act  of  1851,  has  been  decided 
in  Providence,  etc..  Steamship  Co.  v.  Hill  Manufacturing  Co.,* 
likewise  to  apply  to  loss  by  fire.  This  section  provides  that 
the  amount  to*be  recovered  from  any  owner  or  owners  for 
"any  embezzlement,  loss  or  destruction  ....  occasioned  or  in- 
curred without  the  privity  or  knowledge  of  such  owner  or 
owners  shall  in  no  case  exceed  the  amount  or  value  of  the  in- 
terest of  such  owner  or  owners,  respectively,  in  such  ship  or 
vessel  and  her  freight  then  pending. "°  Mr.  Justice  Bradley 
in  delivering  the  opinion  of  the  court,  held  that  the  first  and 
third  section  of  the  act  were  not  repugnant,  that  both  might 
apply  to  loss  by  fire  and  that  tlie  "privity  or  knowledge  of.  the 
owners"  mentioned  in  the  third  section  is  not  necessarily  the 
same  as  the  "  design  or  neglect  of  the  owners"  of  the  first  sec- 
tion. "  The}^  (the  owners)  may  not  be  able  under  the  first 
section  to  show  that  it  (the  loss)  happened  without  any  neglect  on 
their  part  or  what  a  jury  may  hold  to  be  neglect,  whilst  they 
may  be  very  confident  of  showing  under  the  third  section  that 

^  American    Transportation   Co.   v.         ^2   Sawyer,  348. 
Moore,  5  Mich.  368.  ■»   109  U.  S.  578. 

*  3  Wall.  150.  M  Stat.  635. 

170 


CHAP.  XV.]  EXCEPTIONS.  [§  233. 

it  happened  without  their  privity  or  knowledge.  The  condi- 
tions of  proof  in  order  to  avoid  a  total  or  a  partial  liability 
mider  the  respective  sections  are  very  different.  It  is  true  the 
owners  of  a  ship  may  desire  to  contest  all  liability  whatever,  as 
well  as  to  establish  a  limited  liability  if  they  fail  in  the  first 
defence  and  this  they  may  do  as  well  in  cases  of  loss  by  fire  as 
in  other  cases  in  one  and  the  same  proceeding."^ 

'  A  dissenting  opinion  was  filed  by     be  taken  advantage  of  by  aliens,  Tho 
Mr.  Justice  Field,  Gray,  J.,  concur,     "Scotland,"  105  U.  S.  24. 
ring.     The  provisions  of  the  not  may 

171 


234.] 


BILLS   OF   LADING. 


[chap.  XVI. 


CHAPTER  XVI. 

EXCEPTIONS  Continued  — FREEZING  — FROM  WHATEVER 
CAUSE  —  HEAT  —  SUFFOCATION—  FERMENTATION  —  INJU- 
RIOUS EFFECT  OF  OTHER  GOODS— DANGEROUS  GOODS- 
INSUFFICIENT  STOWAGE-JETTISON. 


"Freezing,"  §  234. 

Freezing  after  delay.  §  235. 

Freezing  after  delay  by  preceding 
can-ier,  §§  236,  237. 

"  From  whatever  cause,"  §  238. 

"Goods  carried  on  deck  at  shipper's 
risk,"  §  239. 

"Heat" — "  Suffocation" — "Fermen- 
tation," §§  240,  241. 

Heat,  etc.,  the  result  of  defective 
stowage,  §  242. 


"Injurious   effect  of  other  goods" — 

"  Dangerous  goods" — "  Insufficient 

stowage,"  §  243. 
Liability  under  the  clause  "  where  ship 

is  under  charter  party,"  §  244. 
Illustrations  of  principles  of  the  text, 

§§  245,  246. 
"Jettison" — definition,  §  247. 
Jettison — effect  of  negligence,  §  248. 
Liability  for  deck  load,  §§  249,  250. 


§  234.  The  addition  of  the  exception,  "  freezing,"  relieves 
the  carrier  from  losses  occurring  except  through  his  own 
negligence  or  negligent  delay.  Thus,  where  a  bill  of  lading 
provided  that  "  the  company  would  not  hold  itself  liable  at  all 
for  injury  to  any  article  of  freight  during  the  course  of  trans- 
portation occasioned  by  the  weather,"  and  in  addition  the 
words  "  general  release"  were  written  upon  it,  the  import  of 
which  was  explained  to  be  that  the  carrier  was  released  from 
all  loss  and  damage  happening  to  the  shipment,  and  where  it 
appeared  from  the  evidence  that  though  the  goods  were  deli- 
cate fruits,  and  were  to  be  carried  for  a  long  distance  in  the  dead 
of  winter,  they  were  nevertheless  stowed  by  the  carrier  in  an 
ordinary  box-car  into  which  the  cold  and  snow  entered,  and 
when  it  was  shown  that  fruits  packed  in  this  manner  would 
freeze  in  ordinary  winter  weather ;  it  was  held  that  the  carrier's 
liability  was  not  discharged  by  the  bill  of  lading.^     The  pecu- 


•  Merchants'  Dispatch  and  Trans.  Co.  v.  Comforth,  3  Col.  280. 

172 


CHAP.  XVI.]  EXCEPTIONS.  [§  235. 

liarity  of  the  Is'ew  York  law  which  permits  even  negligence  to 
be  excepted  is  seen  in  a  case  in  which  the  exact  reverse  of  this 
doctrine  is  authoritatively  stated. 

In  Nicholas  v.  New  York  Central,  etc.,  R.  R.  Co.,i  the  con- 
tract contained  a  release  from  liability  for  "  damage  to  perish- 
able property  of  all  kinds  occasioned  by  delays  from  any  cause 
or  change  of  weather  ....  heat  or  cold,"  and  the  carrier  was 
held  not  to  be  liable  for  the  freezing  of  the  goods  (fruit  trees), 
though  it  occurred  through  his  own  negligence,  since  the  re- 
lease contemplated  a  complete  exemption  and  the  law  permitted 
it.  The  general  rule,  however,  is  that  the  freezing  of  perisha- 
ble articles  is  not,  when  it  might  have  been  prevented  by  the 
exercise  of  due  diligence  and  care  on  his  part,  such  an  interven- 
tion of  vis  major  as  excuses  the  carrier.^  Here,  too,  as  has  been 
noted  with  respect  to  other  exceptions,  the  question  of  what 
will  amount  to  such  negligence  as  should  take  the  case  out  of 
the  exception  is  to  be  determined  according  to  the  circumstances 
of  each  case.  Where  potatoes  were  being  transferred  across 
the  North  River  by  a  carrier  in  unusually  severe  weather, 
stowed  on  deck  as  was  usual,  and  were  frozen,  it  was  held 
that  it  was  no  defence  that  such  stowage  would  ordinarily 
have  been  sufficient  protection,  or  that  it  would  have  cost  de- 
fendants more  money  to  have  put  them  below  deck.  "  The 
intensity  of  the  cold,"  it  was  said,  "  created  also  the  obligation 
of  additional  vigilance  and  what  was  usual  was  not  the  consid- 
eration.    What  was  necessary  was  the  true  criterion."^ 

§  235.  The  carrier  is  liable  for  the  value  of  goods  frozen  after 
negligent  delay.  So  where  the  bill  of  lading  read  "  not  account- 
able for  freezing,"  and  "to  be  delivered  without  delay,"  and 
the  goods  were  delayed  and  frozen,  the  carrier  was  held  liable.* 

The  delay  must,  however,  be  unreasonable  and  unnecessary. 
The   circumstances   of  the   case   and    the   average   period   of 

'  4  Hun,  327.  Vail   v.  Pacific    R.  R.    Co.,    63   Mo. 

2  Wolf  V.   American   Express  Co.,  230. 

43  Mo.  421  ;  Read  v.  St.  Louis,  Kan-  *  Whicher  v.  Steamboat  Ewing,  21 

sas    City,    etc.,  R.   R.    Co.,    60   Mo.  Iowa,   240;  Pittsburgh,  Ft.  W.  &  C. 

1^^-  K.  R.  Co.  V.  Hazen,  84  111.  36  ;  Ar- 

^  Wing  V.  New  York  and  Erie  R.  mentrout  v.  St.  L.,  K.  C  &  N.  R.  R, 

R.    Co.,    1   Hilton,   N.   Y.   235  ;    see  Co.,  1  Mo,  App.  158. 

178 


§  237.]  BILLS   OF   LADING.  [CHAP.  XVI. 

transportation  at  the  time  in  question,  are  to  be  considered. 
Thus,  where  apples  were  shipped  from  Vandalia  to  Mimie- 
apolis  by  way  of  Chicago  and  w^ere  seven  days  in  reaching  the 
latter  place,  the  defendant  showed  that  at  the  time  of  the  ship- 
ment its  tracks  and  depot  at  Chicago  had  just  been  destroyed 
by  the  great  fire;  that  the  compan}'^  was  giving  preference  to 
relief  goods  which  they  were  carrying  to  sufferers  from  the  fire 
at  Chicago  and  that  the  average  time  for  the  carriage  of  other 
goods  at  this  time  was  about  ten  days.  It  was  held  that  this 
was  not  such  a  delay  as  would  render  the  carrier  liable  for  the 
freezing  of  the  goods.' 

§  236.  An  interesting  question  arises  when  the  negligent  de- 
lay has  occurred  on  the  route  of  one  of  two  or  more  connecting' 
carriers,  but  the  loss  of  goods  by  freezing  takes  place  when  the 
goods  are  in  the  hands  of  a  subsequent  carrier.  Clearly  the 
later  carrier,  if  free  from  blame,  cannot  be  held  liable,  but  can 
the  prior  carrier  ?  This  was  the  question  which  was  discussed 
in  Michigan  Central  R.  R.  Co.  v.  Curtis.^  Here  it  is  decided 
aflirmatively :  "  They  did  not  have  the  right,"  say  the  court, 
referring  to  the  carriers,  "  to  delay  unreasonably  the  delivery  of 
the  trees  until  they  would  inevitably  be  destroyed  in  the  hands 
of  the  next  carrier  and  then  be  heard  to  say  that  they  were 
destroyed  in  the  hands  of  the  company  into  whose  hands  they 
passed  them  for  ultimate  delivery.  If  they  were  guilty  of  such 
negligence  they  thus  rendered  themselves  liable,  no  matter  in 
whose  hands  the  trees  were  overtaken  and  destroyed  by  the 
frost,  if  the  injury  was  the  natural  and  proximate  result  of 
their  acts."' 

§  237.  A  somewhat  different  construction  of  the  law  was 
at  almost  the  same  time  given  in  the  neighboring  State  of 
Michigan.^  Here  it  w^as  insisted  upon  by  the  court  that  a  direct 
connection  between  the  delay  and  the  subsequent  freezing  must 
be  shown  to  render  the  negligent  carrier  liable.  The  reasoning 
of  the  court  is  worthy  of  consideration.     "  The  only  breach  of 

1  Michigan    Central   R.   E,,    Co.    v.  ^  80  111.  324. 

Burrows,   33    Mich.   6  ;   Burroughs  v.  ^  Michigan   Central   R.    R.    Co.    v. 

Grand  Trunk  R.  Co.,  34  N.  W.  Rep.  Burrows,  33  Mich.  6. 

875. 

174 


CHAP.  XVI.]  EXCEPTIONS.  [§  238. 

this  agreement  complained  of  was  the  failure  to  deliver  within 
a  reasonable  time.  Are  then  the  damages  claimed  the  natural 
and  proximate  consequences  of  such  breach?  We  think  not. 
To  be  so,  the  loss  must  be  immediately  connected  with  the  sup- 
posed cause  of  it.  The  loss  in  this  case  might  or  might  not 
have  occurred,  even  had  there  been  no  delay.  If,  in  the  ordi- 
nary course  of  events,  a  certain  result  usually  follows  IVom  a 
given  cause,  then  we  may  well  consider  the  immetliate  relation 
of  the  one  to  the  other  established.  Cold,  freezing  weather 
does  not,  however,  in  the  ordinary  course  of  events  follow  from 
mere  delay.  Such  is  not  the  natural  and  direct  result  of  delay. 
It  is  true  that  in  certain  climates  and  at  certain  seasons  such  an 
injury  would  be  much  more  likely  to  result  from  delay,  while 
at  otliers  there  would  be  not  even  a  possibility  of  such  a  result 
following.  It  is  very  evident,  therefore,  that  as  we  approach 
the  one  or  the  other,  we  enter  upon  debatable  ground,  where 
it  would  be  very  difficult,  if  not,  indeed,  impossible  to  say 
what  the  result  of  a  given  delay  would  be.  Where  fruit  is 
to  be  carried  a  long  distance,  especially  in  such  a  country  as 
this,  where  the  climate  is  so  changeable,  it  would  as  fre- 
quently result  that  delay  would  be  the  cause  of  averting  such 
injury  as  of  contributing  to  it.  It  may  be  true,  that  had 
there  been  no  delay  whatever  on  the  part  of  the  defendant,  the 
loss  would  not  have  occurred.  The  law,  however,  cannot  enter 
upon  an  examination  or  inquiry  into  all  the  concurring  circum- 
stances which  may  have  assisted  in  producing  the  injury  and 
without  which  it  would  not  have  occurred.  To  do  so  would 
not  only  be  to  involve  the  whole  matter  in  utter  uncertainty, 
for  when  once  we  leave  the  direct  and  go  to  seeking  after  re- 
mote causes,  we  have  entered  upon  an  unending  sea  of  uncer- 
tainty and  any  conclusion  which  should  be  reached  would 
depend  more  upon  conjecture  than  upon  facts." 

§  238.  The  expression  "  From  whatever  cause,"  was  defined 
by  Mr.  Justice  Hogeboom,  in  Smith  v.  ^ew  York  Central  Rail- 
road Company,'  in  respect  to  the  carriage  of  a  person  in  charge 
of  live-stock  upon  a  stock- pass  containing  this  phrase,  in  the 
following  language : — 

'  29  Barb.  (N.  Y.)  132.     Affirmed  24  N.  Y.  222. 

175 


§  239.]  BILLS    OF   LADING.  '  [CHAP.  XVI. 

"  There  are  risks  incident  to  the  transaction  to  which  this 
clause  might  naturally  and  properly  apply  :  risks  from  the  stock 
themselves ;  risks  from  detentions  along  the  way  ;  risks  from 
the  necessity  of  moving  about  the  cars  for  the  purpose  of  feed- 
ing and   taking  care  of  the  stock  ;  risks  from  the  increased 
difficulties  and  perils  of  operating  a  train  of  cars  heavily  encum-  ■ 
bered  with  live  stock;  risks  incident  to  the  management  of 
every  railroad  train,  and  inherent  in  the  very  nature  of  the 
business,  and  not  always  possible  to  be  avoided,  even  by  the 
exercise  of  the  utmost  precaution.     Against  such  risks  we  may 
well  conclude  the  parties  intended  to  contract ;  but  to  assume  that 
the  passenger  intended  to  issue  a  license  for  misconduct,  or  pay 
a  premium  for  negligence,  is  more  than  I  am  willing  to  believe." 
The  eftect  of  this  phrase  seems,  therefore,  but  little  ditferent 
from  that  of  the  other  general  expressions  of  release  elsewhere 
considered,  as  "owners'  risk,"  "general  release,"  "  unavoidable 
accident,"  etc.     It  will  not  exempt  from  the  consequences  of 
negligence.    In  Oxley  v.  St.  Louis,  etc..  Railroad  Company^  the 
bill  of  lading  for  the  shipment  of  twenty-one  mules  and  one 
horse,  stipulated  that  the  carrier  should  not  be  liable  for  loss  by 
escape  or  "  from  any  cause  whatsoever."     The  car  door  was  not 
fastened  by  the  carrier's  agent,  as  the  shipper  requested,  and  one 
mule  escaped.     The  carrier  was  held  to  be  liable  for  the  escape, 
since  his  negligence  had  caused  or  had  co-operated  in  causing 
it.     In  Hawkins  v.  Great  Western  Railroad  Company, ^  the  ex- 
ceptions included  "all  risks  of  loss,  injury,  damage,  and  other 
contingencies  in  loading,  unloading,  conveyance,  and  otherwise," 
but  these,  it  was  said,  did  not  include  an  injury  caused  by  the 
bottom  of  the  car  in  which  the  animals  were  dropping  out,  and 
the  carrier  was  held  liable.    In  Louisville,  etc.,  R.  Co.  v.  Oden,^ 
a  stipulation  in  a  bill  of  lading  exempting  the  company  from 
loss  or  damage  "by  fire  or  other  casualty,"  was  held  to  be  good, 
except  as  against  losses  from  the  negligence  of  the  company's 
agents  or  servants. 

§  239.  The  presumption  in  every  contract  for  carriage  by 
water,  is  that  the  goods  shall  be  stowed  below  decks.     Said 

'  65  Mo.  629  ;  S.  &N.  A.  R.  K.  Co.         ^  17  Mich.  57. 
V.  Henlein,  56  Ala.  368.     But  see  111.         ^  80  Ala.  38. 
Cent.  R.  R.  Co.  v.  Hall,  58  III.  409. 

176 


CHAP.  XVI.]  EXCEPTIONS.  [§  239. 

Mr.  Justice  Shipman  in  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  New  York,  "The  duty  to  store  under 
deck  is  deemed  a  condition  of  every  bill  of  lading,  whether 
expressed  or  not ;  unless  the  liability  is  expressly  excluded  by 
the  terms  of  the  contract,  it  will  always  be  deemed  one  of  its 
provisions.  This  is  a  general  rule  of  maritime  law  arising  out 
of  the  general  usage  of  the  commercial  world."'  Deck  stowage 
is  therefore  prima  facie  negligence  on  the  part  of  the  carrier 
unless  authorized  by  the  bill  of  lading.^  It  is,  hence,  not 
unusual  to  insert  some  such  provision  as  the  expression  under 
consideration  with  the  terms  of  the  contract  where  the  circum- 
stances of  the  case  make  deck-stowage  a  necessity,  for  the  pur- 
pose of  giving  the  carrier  authority  to  make  such  stowage  and 
of  placing  the  liability  for  the  increased  risk  upon  the  shipper. 
The  subject  will  be  discussed  at  some  length  in  connection  with 
the  exception,  jettison. 

The  question,  what  is  deck-stowage?  is  thus  answered  in 
Lowndes  on  General  Average.^  "  Whether  a  ship's  poop  or  a 
house  built  on  deck  is  to  be  considered  as  a  proper  place  for 
cargo  so  as  to  entitle  goods  carried  there  to  the  privileges  of 
under  deck  cargo  in  the  matter  of  jettison,  is  a  question  which 
has  given  rise  to  much  doubt.  The  practice  is  to  treat  the 
poop  as  under  deck,  and  to  follow  the  same  rule  with  such 
houses  as  are  permanently  built  into  the  ship  either  by  forming 
part  of  its  frame  or  by  being  let  down  into  the  beams  and  solidly 
secured  with  iron  keys  or  in  some  equally  substantial  fashion. 
Cargo  in  mere  temporary  erections  not  so  secured  is  treated 
as  if  on  deck.''  In  The  Neptune,*  the  case  in  which  the  strin- 
gent rule  respecting  stowage  below  deck  above  quoted  was  pro- 
nounced by  Mr.  Justice  Shipman,  it  was  held  that  when  on  the 
short  voyage  from  Boston  to  New  York,  goods  were  stowed  on 
the  main  deck  of  a  steamship  which  was  bulwarked  entirely 
round  and  under  cover  of  the  upper  deck,  and  were  well  stowed 
except  they  were  not  stanchioned  down  from  the  top  and  that 

'  The  Neptune,  16  L.  T.  Adm.  36.         '  P.  48. 

2  The  Peytona,  2  Curtis,  21  ;    The        *  16  L.  T.  Adm.  36. 
Delaware,   14   Wall.  579  ;    Barber  v. 
Brace,  3  Conn.  9. 

12  177 


S  239.]  BILLS    OF   LADING.  [CIIAP.  XVI. 

no  bulkheads  were  built  behind  them,  these  goods  were  stowed 
in  sufficient  compliance  with  the  rule  as  laid   down   by  the 

court. 

A  custom  of  the  trade  may  be  introduced  to  prove  the  right 
to  deck  stowage,  but  it  may  be  modified  by  a  custom  not  to  pay 
for  it  if  jettisoned.^ 

In  the  first  case  of  Gould  v.  Oliver,^  in  1837,  the  plea  on  be- 
half of  the  owner  of  the  vessel  against  a  claim  for  general  aver- 
age was  that  there  was  not  and  never  had  been  a  custom  for  the 
ship-owners  to  make  contribution  by  way  of  general  average 
towards  the  jettison  of  a  deck-load  of  timber.  This  was  held 
to  be  bad ;  but  on  the  same  facts  coming  before  the  court,  in 
a  second  case  of  the  same  name  in  1840,  evidence  was  intro- 
duced to  show  that  it  was  not  only  customary  to  carry  timber 
on  deck  but  also  customary  for  such  loads  to  be  at  the  risk  of 
the  ship-owner,  and  inasmuch  as  the  shipper  had  not  consented 
to  that  method  of  stowage,  the  carrier  was  liable.^  This  deci- 
sion led  to  the  practice  of  inserting  in  the  contract  for  carriage 
a  provision  permitting  deck  stowage,  and  then  in  event  of  jetti- 
son being  necessary,  a  "  general  contribution"  in  the  nature  of 
a  general  average  between  the  owners  of  the  ship  and  of  the 
owners  of  the  timber  jettisoned  (but  not  aftecting  other  ship- 
pers) was  held  enforceable.*  This  doctrine,  the  learned  author 
above  quoted  says,  obtains  with  respect  to  deck  shipments  of 
wooden  goods,  tar,  and  perhaps  resin.** 

The  efifect  of  provisions  in  the  bill  of  lading  restricting  lia- 
bility upon  this  practice  is  of  interest.  Where,  for  example,  the 
bill  of  lading  or  charter-party  provides  that  the  deck  stowage 
is  to  be  ".at  the  ship's  risk,"  the  same  author  holds  that  the 
right  of  compelling  contribution  from  the  owners  of  the  deck 
cargo  is  clearly  excluded,  but  that  where  such  phrase  is  not 

1  Gould  V.  Oliver,   4  Bing.  N.   C.  ^  4  BIng.  N.  C.  134. 

134 ;    Same  v.    Same,    2    M.    &    G.  »  Gould  u.  Oliver,  2  M.  &  G.  258. 

208;  Miller  v.  Tetherington,  6  H.  &  *  Johnson  r.  Chapman,  19  C.  B.  N. 

N.   278;    S.   C.  30    L.  J.   Ex.  217.  S.  563;  35  L.  J.  C.  P.  23. 

Affirmed  7    H.  &   N.  954.     Cory  v.  ^  Lowndes  on  General  Average,  p. 

Robinson   cited  Lowndes  on  General  44,  45. 
Average,  p.  42;   Mellor   v.  Chappie, 
same. 

178 


CHAP.  XVI.]  EXCEPTIONS.  [§  240. 

used  the  better  opinion  would  seem  to  be  that  the  owner  of  the 
goods  is  liable  for  his  share.^  From  these  analogies  it  would 
seem,  where  the  clause  "at  shipper's  risk"  is  used  in  this  con- 
nection, that  even  in  the  case  of  timber  or  other  goods  custom- 
arily carried  on  deck,  the  carrier  who  has  not  been  guilty  of 
negligence  is  wholly  exempt  from  the  responsibility  for  loss. 

§  240.  In  Cragin  v.  New  York  Central  Railroad  Company,* 
under  the  terms'^of  the  bill  of  lading  the  shipper  had  assumed 
all  risks  of  injuries  from  "  heat,  suifocation,  etc."  The  ship- 
ment was  a  car-load  of  hogs.  The  hogs  died  from  the  effects 
of  the  heat  and  from  the  neglect  of  the  carrier's  servants  to 
water  and  cool  them.  It  was  held  that  the  stipulation  of  the 
bill  of  lading  exempted  even  from  a  responsibility  for  the  re- 
sults of  negligence  ;  for,  said  Earl,  C,  "  if  it  be  held  that  this 
stipulation  simply  exempts  the  defendant  from  liability  for  m- 
juries  to  the  hogs  from  heat  without  any  fault  on  its  part, 
then  it  gets  nothing,  for  in  such  case  without  the  stipulation  it 
would  not  be  responsible." 

Whether  this  is  a  true  exposition  of  the  law  in  New  York 
may  be  questioned.^  It  certainly  is  not  the  law  elsewhere.  In 
Illinois,  etc.,  Railroad  Company  v.  Adams'*  hogs  were  trans- 
ported by  a  railroad  under  contract  that  they  were  "  to  be  fed 
and  taken  care  of  by  owner."  The  conductor  of  the  train  neg- 
lected to  cause  water  to  be  poured  over  the  hogs  when  they  be- 
came overheated  (which,  it  was  shown,  is  usually  done  in  such 
cases  by  placing  the  car  under  the  spout  of  one  of  the  railroad's 
watering  tanks)  and  many  of  them  perished.  The  carrier  was 
held  liable. 

This  agrees  with  the  law  as  set  forth  in  a  Missouri  case. 
AVhere  the  bill  of  lading  excepted  loss  by  "  suffocation,"  it  was 
held  that  if  the  suffocation  resulted  from  the  negligence  of  the 
carrier,  the  owner  was  entitled  to  recover  for  the  loss.^  So  in 
Leniv  v.  Dudgeon,^  where  a  ship  with  cattle  on  board  came  out 

1  Lowndes  on  General  Average,  p.         ■*  42  III.  474. 

^j  5  Sturcreon  v.  St.  Louis,  etc.,  R.  R. 

2  51  N.  Y.  61.  Co.,  65  Mo.  .569. 

3  Cragin  v.  R.  R.  Co.  is  followed  «  L.  R.  3  C.  P.  17,  n. 
and  indorsed  in  Nichols  v.  R.  R.  Co., 

4  Hun  (N.  Y.),  327. 

179 


§  242.]  BILLS   OF   LADING.  [CHAP.  XVI. 

of  the  Maese  Eiver  to  sea  with  insufficient  ballast,  in  conse- 
quence of  which  she  was  thrown  on  her  beam  ends  by  a  ground 
swell  and  most  of  the  cattle  were  thrown  overboard  or  suftb- 
cated.  This  being  a  case  of  culpable  negligence,  the  exception 
''  suffocation"  in  the  bill  of  lading  was  of  no  effect. 

§  241.  The  exception  "  heat"  is  frequently  employed  with  re- 
spect to  the  injury  to  merchandise  by  warm  weather  or  by  fer. 
mentation.  Here,  too,  the  liability  of  the  carrier  depends  upon 
the  question  of  the  existence  of  negligence.^ 

"It  has  been  established  in  the  superior  courts  of  law,"  says 
a  learned  writer,  "  that  a  ship-owner  is  not  liable  for  the  heat- 
ino-  of  grain  nor  for  damage  arising  from  decay  or  depreciation 
from  natural  causes."^ 

In  Warden  v.  Greer^  the  action  was  brought  against  the 
owners  of  a  steamboat  on  account  of  the  loss  on  a  cargo  of 
two  hundred  barrels  of  molasses,  stated  in  the  bill  of  lading 
to  have  been  received  in  good  order  and  well  conditioned. 
Upon  the  delivery  at  Pittsburgh  two  of  the  barrels  were  miss- 
ing, seven  were  empty  or  nearly  so  and  others  were  only  half 
full.  The  evidence  showed  that  it  was  the  nature  of  molasses 
to  ferment  and  expand  in  handling  in  hot  weather  and  to  vary 
greatly  in  bulk  from  time  to  time.  It  further  appeared  that 
the  article  loses  inevitably  by  leakage  in  transportation.  It 
was  conceded  that  the  two  barrels  lost  must  be  paid  for,  but 
the  court  held  that  the  loss  due  to  leakage  or  contraction  was 
unavoidable  and  that  the  carrier  could  not  be  held  to  answer 
for  it." 

§  242.  Where  the  heat  or  fermentation  is  the  result  of  defec- 
tive stowage  the  carrier  is  liable,  as  in  the  Kepoter,^  where. 

'  Mendelsohn  v.  The  Louisiana,   3  ralty  writ   for   damage   to  the  cargo, 

Woods,   46  ;    Beard   v.   111.   Cent.   R.  not  alleging  anything  against  the  ship 

Co.,  44  N.  W.  (Iowa),  800.  but   against   the    inexpertness   of  the 

2  Leggett  on  Bills  of  Lading,  citing  master  in  not  detecting  the  condition 
The  Anna  Maria,  Adm.  Ct.,  31  July,  of  the  cargo  when  shipped.  The 
1871.  clause  'dangers  and  accidents  of  the 

3  6  Watts  (Pa.),  424.  seas'  was  inadvertently  omitted  from 
*  "So  where  a  cargo  of  wheat,  on     the  bill  of  lading,  but  at  the  hearing 

its  arrival  at  Dublin  on  a  voyage  from     the  court  dismissed  the  petition."   Leg- 
Caen,  was  found  to  be  heated  and  after    gett  on  Bills  of  Lading,  p.  135. 
delivery  the  merchant  issued  an  admi-        ^  38  L.  J.,  Adm.  63. 

180 


CHAP.  XVI.]  EXCEPTIONS.  [§  243. 

sugar  became  heated  and  was  much  damaged  through  the  lack 
of ''necessary  drainage,  or  in  the  Freedom/  where  oil  cake  was 
caused  to  heat  by  being  covered  by  a  quantity  of  bones  stowed 
in  bulk.  In  the  Alexandra,*  however,  on  an  allegation  that 
the  damage  to  the  cargo  originated  from  defective  stowage  and 
heat  and  fermentation  arising  from  the  cargo  being  stowed  in 
too  close  conjunction  with  other  cargo,  it  was  held  that  the 
plaintiffs  must  establish  affirmatively  that  the  cargo  on  its 
arrival  at  its  port  of  destination  was  in  a  damaged  condition, 
and  that  the  onus  then  foils  on  the  ship  to  prove  that  the  origi- 
nal stowage  was  good,  and  that  the  perils  of  the  sea  subse- 
quently occurring,  created  the  damage.^ 

§  243.  The  rule  respecting  the  carrier's  liability  for  a  careful 
and  prudent  stowage  of  the  goods  shipped  is  rigid.  No  phrase 
or  exception  of  the  bill  of  lading  can  exonerate  from  responsi- 
bility for  the  results  of  a  negligent  or  faulty  stowage."  If, 
the  goods  arrive  in  port  in  a  damaged  state,  it  has  been  said 
that  it  is  for  the  carrier  to  show  that  the  stowage  was  good,^ 
and  certain  it  is  that  wilful  and  personal  neglect  need  not  be 
shown  to  charge  the  carrier.  The  mere  fact  that  the  loss  resulted 
from  the  character  of  the  stowage  will  be  sufficient  to  make  a 
prima  fade  case  against  him.«  It  follows  as  a  corollary  from 
these  principles  that  the  carrier  must  so  stow  and  arrange  dif- 
ferent articles  of  cargo  that  they  may  not  injure  each  other  and 
that  failing  to  do  so  he  will  be  liable  to  the  shipper  for  the 
damage  done  to  the  goods  by  the  injurious  effects  of  other 
goods,  even  without  the  allegation  or  proof  by  the  owner  of 
any  wilful  or  negligent  default  on  his  part.^ 

1  L   R    3  C.  P.  594.  *  The  Alexandra,   14  W.  R.  466; 

2  14L.'t.  742.           '  14L.  T.,  N.  S.  742. 

3  Where  cargo  belongs  entirely  to  «  Brass  v.   Maitland,    6   El.   &  J51. 
one  shipper  it  may  be  assumed  that  he  470;   Swainston   v.   Garrick,    2   L.   J. 

.  knows  the  effect  of  one  sort  of  goods  Ex.  255  ;  Hayn  v.  CuUeford,  48  L.  J., 

upon  another.     Ohrloft'  v.  Briscall,  L.  Q.  B.  372:  Gillespie  v.  Thompson,  2 

R     1  C   P.  231 ;   S.  C,  35  L.  J.,  C.  Jur.  N.  S.  713  n.  ;  S.  C,  6  El.  &  B. 

p/g3     .  477  n.  ;   36  Eng.  L.  &  Eq.  227  ;   Hills 

'*  The  Star  of  Hope,  17  Wall.  651 ;  w.  MackiU,  36  Fed.  Rep.  702. 

Baxter  v.  Leland,  1   Abb.  Adm.  348;  ^  Sack  v.  Ford,  13  C.  B.  N.  S.  90  ; 

Dedekam  v.  Vose,  3  Blatchf.  44.  Blackie  v.  Stembridge,  6  C.  B.  N.  S. 

181 


I  244.]  BILLS   OF   LADING.  [CHAP.  XVI. 

Where,  however,  the  responsibility  for  the  stowage  rests  with 
the  plaintiff,  it  is  obvions  that  the  carrier  is  not  liable  for  the  in- 
jurious results,  if  it  be  faulty.  This  may  arise  where  the  contract 
expressly  or  impliedly  provides  that  the  shipper  shall  see  to  the 
stowage,'  or  where  the  shipper  voluntarily  assumes  that  duty, 
as  by  sending  stevedores  to  do  the  work,^  by  saying  that  some 
one  will  come  and  superintend  the  stowing,^  or  by  personally 
superintending  the  work,  the  owner  being  ignorant  of  the  char- 
acter of  the  goods,^  or  where  he  assents  to  the  manner  of  stow- 
age followed  by  the  ship  owner,^  or  where  the  stowage  is  in 
accordance  with  an  established  usage,  if  the  carrier  be  not 
otherwise  in  fault.^ 

§  244.  If,  however,  the  ship  be  chartered  by  third  parties, 
the  owners,  by  their  servants,  the  master  and  crew  remaining  in 
possession,  and  the  vessel  be  then  offered  for  general  freight 
without  notice  of  the  pre-existing  charter  party  being  given  to 
the  shippers,  the  owners  will  be  responsible  to  a  shipper  who  is. 
ignorant  of  the  charter  party,  for  improper  stowage,  although 
the  goods  were  stowed  by  a  stevedore  appointed  by  the  char- 
terers.^ So  also  the  carrier  will  be  liable  if  the  goods  in  suit 
have  been  stowed  in  the  usual  way,  but  near  goods,  which  were 
in  bad  condition  when  put  on  board,  although  but  for  their 
condition  they  would  not  be  injurious.^  Where  the  fault  was 
that  of  a  third  person,  as  of  the  shipper  of  the  injurious  goods, 

894;     Alston   v.    Herring,    11    Excli.  *  Ohrloff  y.  Briscall,    L.   R.,    1    C. 

822;  Gillespie  v.  Thompson,  6  El.  &  P.  231. 

Bl.  477  n.  ;  The   Bark   Colonel  Led-  ^  Hovill  v.  Stephenson,  4  Car.  &  P. 

yard,     1     Sprague,     530;     Bearse    v.  469;  Mayor  r.   White,  7   Car.    &   P. 

Ropes,  Id.    331  ;  Mackinnon  v.   Tay-  41. 

lor,   Com.  Ca.   514;   Brusseau  v.  The  ^  Clark  v.  Barnwell,   12  How.  272. 

Hudson,    11     La.     Ann.    Rep.    427;  The  shipper  is  said  to  be  chargeable 

Rocherou  v.  The  Bark  Hausa,  14  La.  with  notice  of  such  usage.     Baxter  v. 

Ann.    Rep.-  431 ;    Cranwell   v.    The  Leland,  1  Blatchf,  526.     But  see  The 

Fanny  Fosdick,    15    La.    Ann.    Rep.  Filia  Maggiore,  2  L.  R.  Adm.  106. 

436.  '  Sandeman  v.  Scurr,  supra.     The 

1  Angell  on  Carriers,  §212;  Fletcher  St.  Cloud,  Brow  &  L.  Adm.  4,  cited 
V.  Gillespie,  3  Bing.  635.  Angell  on    Carriers,   §  212   n.  ;     The 

2  Murray  v.  Currie,  L.  R.  6,  C.  P.  Filia  Maggiore,  2  L.  R.  Adm.  106. 
24.  *  The  Bark  Cheshire,  2  Sprague,  28. 

^  Swanston  v.  Garrick,  2  L.  J.  N. 
S.  Exch.  255. 

182 


CHAP.  XVI.]  EXCEPTIONS.  [§  246. 

and  even  when  no  fault  is  properly  chargeable  to  any  one,  the 
carrier  is,  nevertheless,  bound  to  answer  for  the  consequences  of 
defective  stowage,  though  a  remedy  will  lie  in  favor  of  the  car- 
rier over  against  the  shipper  of  the  ofl'ending  article.^ 

§  245.  A  few  cases  will  serve  to  illustrate  the  foregoing  prin- 
ciples. 

In  Allston  v.  Herring^  the  plaintiff  chartered  the  defendant's 
vessel  for  a  voyage  from  Glasgow  to  Colombo.  The  plaintiff 
sent  on  board  the  vessel  cambric  goods  and  then  agreed  with  a 
third  party  to  carry  goods  for  tliem  for  freight.  This  party 
shipped  a  quantity  of  sulphuric  acid,  which  was  stowed  by  the 
defendant  near  the  plaintiff's  goods.  The  master  signed  and 
delivered  to  the  plaintiff'  bills  of  lading  for  both  the  cambric 
and  the  acid.  No  notice  was  given  to  defendant  that  the  cargo 
contained  sulphuric  acid.  In  the  course  of  the  voyage  the  acid 
leaked  and  damaged  the  plaintiff"s  goods.  In  an  action  by  the 
plaintiff*  on  the  bill  of  lading  for  not  delivering  the  goods  in 
good  condition,  it  was  held  that  the  neglect  of  the  plaintiff  to 
give  notice  of  the  shipment  of  the  sulphuric  acid  was  no  excuse 
for  the  defendant's  breach  of  contract,  since  it  was  only  a  re- 
mote cause  of  the  damage,  the  proximate  cause  being  the  act  of 
the  defendant  in  placing  the  acid  where  it  was. 

The  stowage  of  iron  bars  in  clcse  proximity  to  copperas,  by 
which  they  became  encrusted  with  the  sulphate  of  iron,  is  such 
negligent  stowage  as  will  bind  the  carrier,  but  it  has  been  said 
that  the  stowage  of  iron  and  salt  in  the  same  cargo  is  not  ne- 
cessarily negligent.3  Tj^g  stowage  of  salt  and  dry  goods  together 
and  of  corn  and  merchandise  on  top  of  hogsheads  of  sugar 
have  been  justified  as  customs  of  the  trade. 

§  246.  In  the  Filia  Maggiore*  barrels  of  oil-cake  had  been 
stowed  alongside  of  hogsheads  of  tobacco,  oaken  staves  being 
placed  between,  and  were  damaged.  Evidence  to  show  that  this 
was  customary  stowage  was  offered,  but  Sir  Robert  Phillimore, 
giving  judgment  for  plaintiff",  said :  "The  answer  to  this  is  two- 
fold.    In  the  first  place,  the  plaintiff,  Simmonds,  says  that  this 

1  Alston  V.  Herring,  11  Exch.  822;         «  n  Exch.  822. 
The  Bark  Colonel Ledyard,  1  Sprague,        ='  See  section  on  "Rust." 
530;  and  cases  cited  above.  ••  2  L.  R.  Adm.  106. 

183 


§  246.]  BILLS   OF   LADING.  [CHAP.  XVI. 

is  a  practice  which  his  firm  have  always  protested  against  and 
in  the  second  place,  it  is  a  practice  which  the  ship-owner  adopts 
suo  pencido.  He  cannot,  bj  the  adoption  of  it,  get  rid  of  his  obli- 
gation to  carry  the  goods  of  a  shipper  in  proper  condition.  It 
may  be  that  in  certain  circumstances  and  in  a  vessel  of  a  cer- 
tain size,  tobacco  and  oil-cake  may  be  stowed  together  without 
injury,  but  in  a  case  where  injury  to  a  very  considerable  extent, 
as  it  is  alleged  in  the  present  case,  does  arise  from  the,  joint 
stowage  of  these  articles,  it  does  not  appear  to  me  that  the 
shipper  can  be  deprived  of  his  remedy  against  the  ship-owner, 
on  the  ground  that  such  stowage  is  usual  and  that  in  many 
cases,  or  usually,  no  injury  accrues  from  it." 

In  Pierio  v.  Windsor,^  mastic,  an  article  new  in  commerce, 
was  shipped  by  a  plaintiff  from  Is'ew  York  to  San  Francisco 
as  common  freight,  but  was  so  affected'  by  the  voyage  that 
it  injured  other  parts  of  the  cargo  in  contact  with  it  and  in- 
volved an  increased  expenditure  in  discharging.  The  injurious 
character  of  the  article  was  unknown  either  to  the  shippers  or 
to  the  defendants  and  no  actual  fault  was  implied.  The  master 
had  paid  for  the  damage  done  to  the  rest  of  the  cargo.  It 
was  held  that  this,  with  all  the  damage  and  expense  occasioned 
by  the  peculiar  character  of  the  article,  must  be  borne  by  the 
shippers. 

Where  the  goods  shipped  were  of  a  dangerous  character,  the 
shipper  was,  at  common  law,  bound  to  give  notice  of  their 
nature  to  the  carrier.  Failing  in  this,  he  was  held  to  be  liable 
to  the  carrier  for  the  damage  caused  b}""  them.^  The  act  of  36 
and  37  Victoria'  specifically  prohibits  the  sending  of  dangerous 
goods  (that  is  to  say) — aquafortis,  vitriol,  naphtha,  benzoin, 
gunpowder,  lucifer  matches,  petroleum,  or  any  other  goods  of  a 
dano'erous  nature  without  crivinsi;  notice  of  the  nature  of  such 
goods  and  the  address  of  the  sender,  an  offence  punishable  by 
a  fine  not  exceeding  one  hundred  pounds.  If  such  goods  be 
sent  under  a  false  description  of  the  goods,  or  a  false  descrip- 

1  2  Clifford,  18.  pany,    3   East,   192;     Great   Western 

*  Hutchinson  v.  Guion,  5  C.  B.  N.  Railway  Co.  v.  Blower,  L.  R.   7  C.  P. 

S.  149;  Farrant  v.  Barnes,   11   C.  B.  655. 

N.  S.  553  ;  Heme  v.  Garten,  2  E.  &  ^  ^g  ^  37  yjct.,  c.  85,  §§  23  to  28 

E.  66  ;   Williams  v.  East  India  Com-  ind. 

184 


CHAP.  XVI.]  EXCEPTIONS.  [§  247. 

tion  of  the  sender,  the  penalty  annexed  is  five  hundred  pounds. 
The  master  or  owner  of  tlie  vessel  (British  or  foreign)  may 
refuse  to  take  on  board  any  package  or  parcel  which  he  sus- 
pects to  contain  such  goods,  and  when  such  goods  are  discov- 
ered not  marked  as  provided,  or  sent  without  notice,  they  may 
be  thrown  overboard  by  the  master  or  owner  without  any 
liability,  civil  or  criminal,  being  by  him  incurred.  Such  goods 
may  moreover  be  declared  by  any  court  having  admiralty  juris- 
diction to  be  forfeited  and  may  be  disposed  of  as  the  court 
directs. 

The  only  provision  similar  to  this  to  be  found  among  the 
statutes  of  the  United  States  is  the  act  of  3  July,  1866,^  re- 
lating to  the  carriage,  packing,  and  marking  of  nitro-glycerine, 
in  which  the  carriage  of  this  conmiodity  upon  a  vessel  or 
vehicle  used  or  employed  in  transporting  passengers  is  alto- 
gether forbidden,  and  the  method  of  packing  and  marking  is 
prescribed,  and  a  penalty  of  not  less  than  one  thousand  dollars 
nor  more  than  four  thousand  dollars  affixed  to  the  breach  thereof. 
It  has  further  been  held  that  the  shipper  who  delivers  to  the 
carrier  a  package  containing  such  goods,  but  not  properly 
marked,  is  liable  to  the  carrier  for  all  the  damage  caused  by 
the  explosion  of  the  goods  while  in  the  carrier's  custody.^ 

§  247.  The  exception  of  goods  lost  by  "jettison"  is  usually 
included  in  the  bill.  In  the  case  of  Bird  v.  Astcock,^  Lord 
Coke  decided  that  where  goods  were  thrown  overboard  in  a 
great  storm  by  a  bargeman  to  save  the  lives  of  the  passengers 
by  lightening  the  barge,  the  carrier  was  exonerated  from  lia- 
bility ;  wdiile  in  Bancroft's  Case,  cited  by  Lord  Chief  Justice 
RoLLE,  in  Kenrig  v.  Eggleston,^  it  is  stated  that  where  a  box  of 
jewels  having  been  delivered  to  a  ferryman,  who  knew  not 
what  it  contained,  and  upon  a  sudden  storm  arising  in  the 

•  R.  S.,  §§  5354,  5355,  4278,  4279.  handled  the  package  In  a  way  in  which 

2  Boston,  etc.,  R.   R.  Co.,  v.  Shan-  packages  not  calcukted  to  arouse  sus- 

ley,  107  Mass.  568.     But  where  nitre-  picion  are  ordinarily  to   be    handled. 

glycerine  was  intrusted  to  the  carrier  The  Nitro- Glycerine  Case,   15  Wall. 

without   notice    of   its  character,   and  524. 

exploded,    injuring  the  building  of  a  "2  Bulst.  280. 

third  person,  it  was  held  that  the  car-  *  Aleyri,  93. 

rier  could  not  be  held  liable,  if  he  had 

185 


§  248.1  BILLS   OF   LADING.  [CHAP.  XVI. 

passage,  he  threw  it  into  the  sea,  it  was  resolved  that  he  should 
answer  for  it.  Sir  William  Jones  conjectures  that  the  real 
reason  for  the  ruling  in  the  latter  case  was  the  culpable  negli- 
gence of  the  carrier  in  not  preserving  the  goods  intrusted  to 
his  care,  so  long  as  it  was  reasonably  possible  for  him  to  do  so. 
These  two  cases  contain  all  the  law  as  to  the  carrier's  liability 
in  case  of  jettison. 

Jettison  is  defined  as  the  heaving  overboard  of  the  goods  in 
order  to  save  the  ship.'  To  this  may  be  added  the  explanation 
of  Chancellor  Kent  :  The  goods  "  must  be  intentionally  sacri- 
ficed by  the  mind  and  agency  of  man  for  the  safety  of  the  ship 
and  the  residue  of  the  cargo.  The  jettison  must  be  made  for 
sufficient  cause  and  not  from  groundless  timidity.  It  must  be 
made  when  the  ship  is  in  danger  of  perishing  by  the  fury  of  a 
storm  or  is  laboring  upon  rocks  or  shallows  or  is  closely  pur- 
sued by  pirates  or  enemies. "^ 

It  follows  from  these  definitions  that  jettison  may  fall  within 
the  exceptions,  "  act  of  God,"  "  perils  of  the  sea,"  "  the  public 
enemy,"  and  may  probably  be  included  in  others  of  the  ex- 
cepted perils. 

§  248.  The  usual,  implied  provision  with  respect  to  negli- 
gence, however,  obtains.  Neither  the  exception,  "perils  of  the 
sea,"  nor  the  exception  "jettison"  will  exempt  a  carrier  who  has 
jettisoned  the  goods  without  sufficient  reason,  or  has  negligently 
placed  himself  in  such  a  position  that  jettison  is  necessary,  as 
by  setting  to  sea  in  an  unseaworthy  vessel  or  by  improper 
stowage.^ 

The  circumstances  of  each  case  are  to  be  inquired  into.  In 
Van  Syckel  v.  The  Thomas  Ewing,*  a  vessel  entering  Mobile 
Bay,  at  dusk,  with  a  strong  wind  blowing  in  shore,  and  every 
prospect  of  bad  weather,  endeavored,  for  want  of  a  pilot  (there 
being  none  at  hand),  to  follow  the  course  of  a  pilot-boat  in  ad- 
vance of  her,  and  ran  aground  on  a  bar  of  mud.     The  master, 

•  The  Neptune,  16    L.  T.,  N.  S.  ciple  is  alike  applicable  to  exceptions 

Adm.  36.  in    bills  of  lading    and   in  policies  of 

2  Kent's  Comm.,iii.  p.  233.  insurance.     The   Portsmouth,    supra, 

3  Nemours  v.  Vance,  19  How.  162;  Ins.  Co.  v.  Sherwood,  14  How   365. 
Laurence  v.  Minturn,  17  ib.'lOO;  The        *  3  Clark  (Pa.),  U.  S.  C.  C.  231  ; 
Portsmouth,  9  Wall.  682.     The  prin-  S.  C.  Crabbe,  405. 

186 


CHAP.  XVI.]  EXCEPTIONS.  [§  249. 

in  order  to  lighten  the  load,  broke  open  heavy  casks  of  liquor 
carried  on  deck.  It  was  urged  that  the  carrier  was  guilty  of 
negligence,  first,  in  attempting  to  come  up  the  bay  without  a 
pilot  and,  second,  in  breaking  the  casks  of  brandy  instead  of 
throwing  them  overboard  and  taking  the  chance  of  recovering 
some  or  all  of  them  by  their  floating  ashore.  After  considering 
the  facts,  the  court  held  that  such  loss  was  within  the  meaning 
of  the  phrase,  "peril  of  the  sea." 

§  249.  An  interesting  branch  of  inquiry  under  this  question 
is,  as  to  the  rule  of  the  carrier's  liability  for  the  loss  of  a  deck- 
load.  Clearly,  where  the  bill  of  lading  declares  that  the  goods 
are  to  be  stowed  on  deck,  and  at  the  same  time  excepts  perils 
of  the  sea  or  jettison,  the  exception  must  be  construed  with 
reference  to  the  particular  adventure  which  the  contract  of 
afireightment  shows  was  contemplated  by  the  parties.^ 

The  shipper  in  consenting  to  have  his  goods  carried  on  deck 
has  entered  into  the  contract  and  taken  the  increased  risk  in 
consideration  of  a  reduced  rate  of  freight.  The  carrier  cannot 
consequently  be  held  to  so  strict  a  measure  of  liability. 

As  was  said  in  The  Milwaukee  Belle,^  the  shippers  have  con- 
sented that"  the  vessel  should  be  by  their  own  act  rendered  less 
manageable,  and  they  cannot  therefore  sue  for  a  loss  consequent 
upon  his  own  agreement  on  the  ground  that  the  stowage  was 
improper.^  Lawrence  v.  Minturn^  was  the  case  of  a  libel  filed 
against  the  ship  Hornet,  for  the  non-delivery  of  two  steam 
boilers,  shipped  on  board  that  vessel  in  the  port  of  New  York. 
The  boilers  were,  under  the  terms  of  the  bill,  to  be  stowed  on 
deck,  and  were  jettisoned  in  rough  weather,  without,  as  the 
court  found,  "  any  fault  or  breach  of  contract  by  the  carrier." 
The  shippers  urged  that  the  vessel  with  the  boilers  on  deck  was 
unseaworthy,  but  it  appearing  that  the  ship  was  new  and  that 
the  goods  were  stowed  according  to  the  contract,  the  carrier 
was  discharged. 

'  Lawrence  v.  Minturn,  17  How.  Bing.  N.  C.  134  ;  Gould  v.  Oliver,  2 
100.  M.  &   G.    208;    Smith  v.  Wright,   1 

2  2  Bissel,  197.  Gaines,    43;     Lenox   v.    Ins.     Co.     3 

'  Johnston  v.  Crane,  1  Kerr  (New    Johns.  Cas.  178. 
Brunswick),   365;  Gould  v.  Oliver,  4        ♦I?  How.  100. 

187 


I  250.1  BILLS   OF   LADING.  [CUAP.  XVI. 

§  250.  The  presumption,  however,  is  that  goods  are  to  be 
carried  below  deck  and  the  burden  of  proving  that  the  shipper 
agreed  to  deck  stowage  is  on  the  carrier.^  Even  where  the  bill 
of  lading  is  silent  as  to  the  place  of  stowage,  the  law  implies 
that  the  goods  are  to  be  stowed  below  deck.  Parol  evidence 
of  an  agreement  that  they  may  be  carried  on  deck  is  not  admis- 
sible.2  An  established  custom,  as  in  the  carrying  of  timber, 
may,  however,  be  shown  as  entering  into  the  contract.^ 

"  If  the  goods  are,  without  the  consent  of  the  merchant  and 
contrary  to  established  usage,  stowed  on  deck  and  are,  from 
being  so  fjlaced,  thrown  overboard  in  tempestuous  weather,  the 
carrier  will  be  ansv/erable  for  the  loss  by  the  jettison."''  So  in 
an  early  Connecticut  case*  it  was  shown  that  gin  was  received 
as  customary  freight  and  was  stowed  on  deck.  The  bill  of 
lading  excepted  "  dangers  of  the  sea,"  and  the  goods  were  jetti- 
soned. It  was  not  pretended  that  the  jettison  was  not  neces- 
sary, but  it  was  held  that  the  carrier  was  liable  unless  he  could 
show  that  such  stowage  was  authorized  by  the  consent  of  the 
shipper  or  by  custom. 

In  the  recent  English  case  of  Royal  Exc.  Ship  Co.  v.  Dixon 
it  appeared  that  a  ship  grounded  and  portions  of  the  cargo  were 
properly  jettisoned,  among  which  was  cotton  carried  on  deck, 
shipped  under  bills  of  lading  containing  exceptions  of  "jetti- 
son." The  court  held  that  the  ship-owners  were  liable,  as  the 
exception  referred  only  to  goods  stowed  under  deck,  and  that 
they  were  not  excused  by  a  custom  in  the  trade  of  loading 
cotton  on  deck.^  In  the  Enrique,''  where  the  deck  load  consisted 
of  cattle  which  were  jettisoned  in  very  rough  weather,  the  bill 
of  lading  expressly  excepted  any  loss  that  might  arise  through 

1  ThePeytona,  2  Curtis,  21.  Same  v.  Same,  2  M.  &  G.  208;  Da 

2  The  Delaware,  14  Wall.  579.  Costa  v.  Edmunds,  4  Camp.  142; 
Even  where  the  bill  specifies  that  Miller  v.  Tetherington,  30  L.  J.  Ex. 
certain  of  the  goods  may  be  carried  217  ;  S.  C.  3  L.  T.  893  ;  6  H.  &  N. 
on  deck,  parol  evidence  respecting  the  278,  affirmed  7  ib.  954,  31  L.  J.  Ex. 
carriage  of  the  others  may  not  be  in-  217. 

troduced.      Sayward    v.    Stevens,    3  *  Angell  on  Carriers,  §  218,  n.,  and 

Gray  (Mass.),  97.  cases  cited. 

3  Leggett   on   Bills   of  Lading,    p.  ^  Barber  v.  Brace,  3  Conn.  9. 
200;  Barber   v.  Brace,   3   Conn.   13;  M2  App.  Cases,  11. 

Gould  V.  Oliver,  4  Bing.  N.  C.  134  ;         ^  5  Hughes,  275. 

188 


CHAP.  XVI,]  EXCEPTIONS.  [§  250. 

the  cattle  being  washed  overboard  or  jettisoned.  It  was  urged 
that  this  exception  was  unreasonable  and  against  public  policy, 
but  the  court  refused  to  so  consider  it. 

In  the  case  of  necessary  jettison,  the  shipper,  though  de- 
prived of  his-  remedy  against  the  carrier  by  the  exceptions  of 
the  bill  of  lading,  has  nevertheless  a  right  to  compel  contribu- 
tion from  the  owners  of  the  ship  and  cargo  under  the  principle 
of  general  average.  General  average,  however,  does  not  apply 
to  the  jettison  of  a  deck  load  unless  the  other  parties  have 
assented  to  such  stowage.'  Where  there  has  been  no  such  as- 
sent and  where  the  bill  of  lading  contains  such  exceptions  as 
those  under  consideration,  the  loss  falls  on  the  shipper  alone.^ 
So,  too,  where  the  jettison  results  from  the  vice  jjropre  of  the 
goods  jettisoned,  as  where  hemp  or  cotton,  shipped  in  a  damp 
state  and  likely  to  catch  iire  from  heating,  is  jettisoned,  there 
is  no  general  average  and,  it  is  safe  to  say,  no  liability  on  the 
part  of  the  carrier  under  his  contract.^ 

1  Smith  V.  Wright,   1    Caines,   43;  ^  Chappel  v.  Comfort,  31  L.  J.  C. 

Lenox    v.    Ins.    Co.,   3    Johns.   Cas.  P.  58. 

178;  Leggett  on  Bills  of  Lading,  p.  ^  Johnson  v.  Chapman,  35  L.  J.  C. 

200.  P.  23. 

189 


251.] 


BILLS   OF   LADING. 


[chap.  XVII. 


CHAPTER   XVII. 

EXCEPTIONS  Continued— LEAKAGE  AND  BREAKAGE— LACK 
OF  FOOD— LOADING  AND  UNLOADING  — OBLITERATION 
OF   MARKS— OWNER'S   RISK. 


"Leakage  and  breakage,"  §  251. 

Leakage  and  breakage — effect  of  neg- 
ligence, §  252. 

Leakage  and  breakage — burden  of 
proof,  §  253. 

"  Lack  of  food  and  water,"  §  254. 

"Loading  or  unloading,"  §  255. 

Loading  or  unloading — obligation  to 
furnish  suitable  cars,  §  256. 

Rule  in  England,  etc.,  §  257. 

Construction  in  Michigan  court,  §  258. 


"Obliteration  of  marks,"  §  259. 

"Owner's  risk,"  §  260. 

Owner's  risk — negligence,  §  261. 

Owner's  risk — effect  of  fraud  or  mis- 
representation, §  262. 

Owner's  risk  in  carriage  of  live  stock, 
§263. 

Cons-truction  of  exception  by  English 
courts,  §  264. 

Legislation  in  England,  §  265. 


§  251.  The  word  "  leakage,"  when  used  in  a  bill  of  lading, 
refers  to  loss  by  the  leaking  of  the  goods  themselves  and  does 
not  include  damage  done  to  other  packages  by  a  liquid  escap- 
ing. So  "  breakage"  does  not  cover  the  injury  done  to  other 
goods  by  the  cutting  or  rubbing  of  the  broken  article.^  Where 
the  accumulation  of  molasses  drainage  upon  the  floor  of  the 
hold  of  a  vessel  was  so  deep  that  certain  casks  of  sugar  were 
half  subnierged  in  it  and  were  thereby  caused  to  heat,  it  was 
held  that  this  did  not  come  within  the  exception  "  not  liable 
for  leakage."^  So  where  one  bale  of  piece-goods  was  dam- 
aged by  oil  having  come  in  contact  with  it  and  others  of  the 
same  shipment  were  injured  by  chafing  during  the  voyage,  it 
was  held  that  the  former  damage,  did  not  come  under  the  head 
of  leakage  nor  the  latter  under  breakage.^ 


1  Thrift  V.  Youle,  46  L.  J.  C.  P. 
402. 

In  Hill  V.  Sturgeon,  28  Mo.  323, 
the  bill  of  lading  provided:  "The 
....  owners  insure  the  freight 
shipped   on  the  barge   against    leak-    Rep.  60. 

190 


ing  and  sinking."  It  was  held  that 
this  was  intended  to  insure  only  the 
seaworthiness  of  the  barge. 

2  The  Nepoter,  38  L.  J.  Adm.  63. 

3  Graham  v.  Hille,  10  Bom.  H.  C. 


CHAP.  XVII.] 


EXCEPTIONS. 


[§  252. 


Leakage  or  breakage,  within  the  meaning  of  the  exception, 
is  not  mere  average  leakage  or  breakage.* 

In  OhrlofF  v.  BriscalP  nearly  half  of  the  oil  which  the  bill  of 
lading  covered  had  leaked  through  the  casks  in  which  it  was 
contained  and  had  been  lost.  It  was  urged  that  this  was  too 
great  a  part  of  the  entire  quantity  to  be  within  the  exception. 
The  Court  said  :  "  We  do  not  think  such  a  construction  allow- 
able. The  condition  that  the  ship-owners  are  not  to  be  account- 
able for  leakage  does  not,  in  its  ordinary  and  grammatical  sense, 
put  any  limit  to  the  quantity  of  leakage  and  on  principle,  there- 
fore, we  do  not  think  it  would  be  justifiable  to  add  any  such 
limit  to  its  terms  ;  nor  are  we  aware  of  any  authority  for  doing 
so."3 

§  252.  The  general  rule  may  be  thus  stated :  the  exception 
includes  all  such  leakage  and  breakage  as  reasonable  care  and 
diligence  on  the  part  of  the  carrier  could  not  prevent.  The 
carrier  is  liable  for  the  result  of  his  negligence.* 

The  question  of  negligence  frequently  resolves  itself  into  a 


'  The  Invincible,  1  Lowell  Deci- 
sions, 225.  In  some  cases,  however, 
the  bill  of  lading  excepts  "average 
leakage  and  breakage,"  and  the  bur- 
den then  rests  upon  the  claimants  to 
show  that  the  leakage  is  greater  than 
the  average.  630  Quarter  Casks  of 
Sherry  Wine,  14  Blatch.  C.  C.  517; 
opinion  by  Waite,  Ch.  J.,  affirming  7 
Ben.  506. 

2  35  L.  J.  C.  P.  63 ;  S.  C.  The 
Helen,  15  W.  R.  202,  12  Jur.  (N. 
S.)  675;  4  Moore  P.  C.  C  (N.  S.) 
70;  B.  &  L.  429;  14  L.  T.  (N.  S.) 
873. 

^  The  law  in  Louisiana  seems  to  be 
otherwise,  namely,  that  an  exception 
such  as  "not  responsible  for  leakage" 
excuses  ordinary  leakage  merely  but 
will  not  authorize  the  carrier  to  re- 
turn empty  casks.  Brauer  v.  Barque 
"Almoner,"  18  La.  Ann.  Rep.  266. 

*  Phillips  V.  Clark,  2  C.  B.  N.  S. 
156;   S.  C,  3  Jur.  N.  S.  467,   26  L. 


J.  C.  P.  168;  Phillips  V.  Clark,  5 
Jur.  N.  S.  1081;  The  "Oriflamme," 
1  Sawyer,  C.  C.  176;  The  "David 
and  Caroline,"  5  Blatch.  266;  Vitri- 
fied, etc..  Sewer  Pipes,  5  Ben.  402  ; 
Carey  17.  Atkins,  6  Ben.  562;  Steele 
V.  Townsend,  37  Ala.  247  ;  Thomp- 
son V.  C.  &  N.  W.  Ry.  Co.,  27  la. 
561;  Reno  v.  Hogan,  12  B.  Monroe 
(Ky.),  63;  Arend  u.  l^iverpool,  etc., 
S.  S.  Co.,  64  Barb.  (N.  Y.)  118;  S. 
C,  6  Lans.  (N.  Y.)  457;  Mo.  Valley 
R.  R.  Co.  V.  Caldwell,  8  Kan.  244 
Baker  v.  Brinson,  9  Rich.  (S.  C.)  201 
Hunnewill  v.  Taber,  2  Sprague,  1 
The  Jefferson,  31  Fed.  Rep.  489  ;  The 
Connaught,  32  Fed.  Rep.  640;  The 
Burgundia,  29  Fed.  Rep.  607  ;  Mark 
V.  Surrey,  29  Fed.  Rep.  608;  The 
Polynesia,  30  Fed.  Rep.  210;  N.  Y. 
Cent.  V.  Eby,  12  Atl.  Rep.  482  ;  West 
Manuf.  Co.  v.  Guiding  Star,  3  7  Fed. 
Rep.  641  ;  The  Barraconta,  40  Fed. 
Rep.  498. 

191 


§  253.]  BILLS   OF   LADING.  [CHAP.  XVII. 

consideration  of  the  sufficiency  of  the  stowage,  and  is  to  be  de- 
termined by  the  circumstances  of  each  case.  It  is,  however, 
no  defence  to  the  presumption  of  negligence  raised  by  proof  of 
improper  stowage,  for  the  carrier  to  show  that  a  professional 
stevedore  was  employed  to  stow  the  cargo  ;^  but  when  by  usage 
or  agreement  this  business,  is  performed  by  persons  employed 
by  the  shipper,  this  fact  will  avail  as  a  defence  to  the  carrier.^ 
§  253.  The  addition  of  the  exception  to  the  bill  of  lading 
does  not  free  the  carrier  from  the  responsibility  for  loss 
throuo-h  his  own  fault,  but  it  does  shift  the  burden  of  proof 
and  make  it  necessary  that  the  negligence  shall  be  affirma- 
tively shown  before  he  can  be  held  liable.^  Thus,  in  Czech 
V.  The  General  Steam  Navigation  Company,*  the  bill  of  lading 
excepted  "  breakage,  leakage,  or  damage,"  and  the  goods  were 
found  at  the  end  of  the  voyage  to  be  injured  by  oil.  It  was 
shown  that  there  was  no  oil  in  the  cargo,  but  that  there  were 
two  donkey  engines  on  deck  near  the  place  where  the  goods 
were  stowed,  in  lubricating  which,  oil  was  used.  There  was  no 
direct  evidence  of  how  the  injury  occurred.  It  was  held  that 
whether  these  facts  proved  that  the  loss  was  due  to  the  negli- 
gence of  the  carrier  under  these  circumstances  was  for  the  jury. 
Even  where  the  evidence  shows  negligent  stowage  the  carrier 
will  not  be  liable  unless  it  appears  that  the  damage  resulted 
from  that  fact,^  while  on  the  other  hand  the  proof  of  the  exist- 
ence of  a  defect  in  the  goods  themselves  relieves  the  carrier, 
unless  it  can  be  shown  that  loss  might  have  been  avoided  by 
the  exercise  of  reasonable  care.^  In  iS^elson  v.  I^ational  Steam- 
ship Company^  the  bills  of  lading  contained  the  exception 
"  leakage,  breakage,  or  stowage,  however  such  damage  may  be 
caused,"  and  likewise  the  written  memorandum  that  the  casks 
shipped  thereby  were  loose.  The  consignees  brought  suit  for 
loss  occasioned  by  reason  of  injury  to  the  casks  through  care- 
less handling,  but  the  court  held  that  while  the  exceptions  in 

'  Sandeman  v.  Scurr,   2  L.   R.   Q.  301  ;  The   Polynesia,    30    Fed.   Rep. 

B.  98;  Rochereau  v.  Bark  "Hausa,"  210. 

14  La.  Ann.  Rep.  431.  •«  L.  R.  3  C;  P.  14. 

2  Thomas «;.  Ship  "Morning Glory,"  «  The  Delhi,  4  Ben.  345. 

13  La.  Ann.  Rep.  269.  «  The  Bark  "Olbers,"  3  Ben.  148. 

'  The  Steamship  "Pereire,"  8  Ben.  '  7  Ben.  340. 

192 


CHAP.  XVII.]  EXCEPTIONS.  [§  254. 

the  bill  of  lading  did  not  discharge  the  carrier's  liability  for  his 
own  negligence,  yet  it  appearing  from  the  evidence  that  some 
of  the  casks  were  loose  at  the  time  of  shipment,  the  presump- 
tion was  that  this  was  the  cause  of  the  loss.* 

In  Louisiana  it  has  been  said  that  the  proof  of  proper  care  in 
handling  and  stowing  the  goods  must  be  made  affirmatively  by 
the  carrier  and  the  reason  given  is  that  "  the  proof  of  the 
character  of  the  stowage  is  more  within  the  power  of  the  own- 
ers of  the  ship  than  the  shipper."^  Where  leakage  is  caused 
by  an  attempt  to  abstract  oil  from  the  packages  the  carrier  is 
liable,  although  the  bill  of  lading  exempts  him  from  liability 
for  "  breakao-e  and  leakao;e."^ 

§  254.  The  carrier  of  cattle,  where  the  bill  of  lading  does  not 
expressly  provide  otherwise,  is  bound  to  feed,  water  and  take 
proper  care  of  the  animals  intrusted  to  him,  and  will  be  liable 
for  a  neglect  to  perform  his  duty  in  this  regard.*  So  in  a  case 
where  hogs  had  died  for  the  want  of  water  while  in  the  hands 
of  a  railroad  company,  it  was  properly  said  that  it  was  as  much 
the  duty  of  the  company  to  provide  water  at  suitable  points  on 
the  line  of  the  road  for  the  use  of  the  stock  as  it  was  to  carry 
the  animals."  In  a  Michigan  case  pigeons  were  being  car- 
ried by  an  express  company,  there  being  much  delay  and 
the  birds  not  being  fed  or  watered,  many  of  them  died  before 
delivery.  There  being  nothing  to  indicate  whether  the  car- 
rier was  acting  as  a  common  carrier  or  bailee  for  hire,  it  was 
left  undecided  whether  an  express  company,  acting  in  either 
capacity,  "  would,  in  the  absence  of  an  express  agreement,  be 
impliedly  bound  to  supply  them  with  food  and  water,  so  far  as 
essential  to  their  preservation."^  By  special  stipulation  in  the 
bill  of  lading  the  carrier  may  be  relieved  in  consideration  of  a 

'  In    Walford's    Summary    of    the  Ann.     Rep.    429;     Edwards   v.    Str. 

Law  of  Eailways,  cited  in  Angell  on  "Cohawba,"  ib.  224. 

Carriers,  §  212,  note  2,  is  to  be  found  '  Gigilo  v.  Britannia,  31  Fed.  Rep. 

noted  a  series  of  cases  in  which  the  432. 

defect  of  the  goods  has  been  held  not  *  Lawson  on  Contracts  of  Carriers, 

to  operate  as  an  excuse  for  the  carrier.  §  175. 

Zerega  v.  Poppe,   1  Abb.   Adm.  397,  ^  T.  W.  &  N.  Ry.  Co.  v.  Hamilton, 

goes  some  length  in  that  direction.  76  111.,  393. 

*  Tardos  v.  Ship  "  Toulon,"  14  La.  «  Am.  Mer.  Union  E.x.  Co.  v.  Phil- 
ips, 29  Mich.  515. 

13  •  193 


§  256.]  BILLS    OF   LADING.  [CHAP.  XVII. 

reduced  rate  of  freight,  or  other  benefits,  from  the  duty  of  feeding 
and  watering  the  live  stock  and  that  duty  be  assumed  by  the 
shipper.  In  such  case  the  carrier  must,  nevertheless,  furnish 
adequate  carriage,  afibrd  reasonable  opportunities  to  the  owner 
or  his  agents  to  care  for  the  stock  and  subject  them  to  no  un- 
necessary delay  in  transportation.  He  will  further  be  liable  for 
the  results  of  his  own  negligence.^ 

§  255,  The  phrase  "Load  and  unload  at  his  own  risk,"  or  its 
equivalents,  puts  upon  the  shipper  all  risks  of  damage  to  the 
goods  in  loading  them  upon  or  unloading  them  from  the  vessel, 
car,  carriage,  stage,  or  other  vehicle  of  transit.  Manifestly, 
however,  it  has  no  application  to  damage  to  the  goods  while 
being  transported,^  nor  to  personal  injuries  to  the  shipper  re- 
ceived in  loading  them.^  In  Stinson  v.  New  York  Central  R.  R. 
Company,*  where  the  shipper  was  injured  by  a  passing  train 
while  engaged  in  loading  his  goods,  through  the  negligence  and 
fault  of  the  railroad  company  and  the  bill  of  lading  contained 
the  phrase  under  consideration,  judgment  was  entered  against 
the  defendants. 

§  256.  Even  with  the  existence  of  this  exception  the  carrier 
is  obliged  to  furnish  suitable  and  proper  means  of  transporta- 
tion. He  will  not  be  exempted  from  the  responsibility  for 
negligence  in  this  regard.  Where  the  carrier  is  exempted  in 
the  bill  of  lading  from  "  all  responsibility  in  loading  or  unload- 
ing or  otherwise,  whether  arising  from  negligence,  misconduct, 
or  otherwise,"  he  is  liable  for  injuries  caused  by  defects  in  the 
car.  If  the  shipper  did  not  assent  to  the  use  of  the  car  in 
which  his  stock  was  shipped  he  was  entitled,  even  in  such  a 
contract,  to  expect  that  they  would  be  suitable  for  the  business.' 
Hence,  in  a  case  which  has  twice  been  before  the  Supreme 
Court  of  Michigan,  where,  in  loading,  the  bottom  of  the  car 

'  South  Alabama,  etc.,  R.  R.  Co.  ^  Stinson    v.  N.  Y.  Central  R.  R. 

V.  Henlein,  52  Ala.  606  ;    Illinois,  etc.,  Co.,  32  N.  Y.  333. 

R.  R.  Co.  V.  Adams,  42  111.  474.    But  *  Supra. 

see  Cragin  v.  R.  R.  Co.,  51  N.  Y.  61,  "  Hawkins  v.  G.  W.  R.  R.  Co.,  17 

contra.  Mich.,  57  ;    Potter  v.  Sharp,   24  Hun 

«  Indianapolis,  etc.,   R.  R.  Co.  v.  (N.  Y.),  179;    Shaw  i'.  Y.  N.  M.   R. 

Allen,  31  Ind.  394.  Co.,  13  Q.  B.  347  ;    18  L.  J.    Q.  B. 

181. 

194 


CHAP.  XVII.J  EXCEPTIONS.  [§  257. 

furnished  by  the  railroad  company  dropped  out  and  the  loss 
was  due  to  this  fact,  the  carrier  was  held  liable.^ 

§  257.  In  an  English  case,  however,  where  the  plaintiff's 
horses  were  injured  in  transit  by  defective  trucks  and  the  plain- 
tiff" had  signed  a  "  risk  note,"  whereby  loading  and  unloading 
were  to  be  performed  by  the  sender,  and  the  company  to  be 
free  from  any  risk  in  receiving,  loading,  forwarding,  transit,  or 
unloading,  and  from  liability  for  suffocation,  trampling,  bruis- 
ing, over-carriage,  detention,  delay  ;  nor  damages  in  relation  to 
conveying  or  delivering  said  animals,  however  caused,  nonsuit 
was  entered  for  the  defendants,  and  this  the  Queen's  Bench  re- 
fused to  take  off".^ 

In  Penn  v.  Buffalo,  etc.,  Railroad  Company ,3  there  was  a  spe- 
cial contract  for  the  transportation  of  cattle  at  reduced  rates, 
provided  the  shipper  should  load  and  unload  at  his  own  risk, 
the  carrier  furnishing  necessary  laborers  to  assist,  under  the 
direction  and  control  of  the  shii)per,  who  was  to  examine  for 
himself  all  the  means  used.  The  train  was  delayed  on  the  way 
and  at  a  distance  from  the  railroad's  cattle-yard,  on  account  of 
a  snow-storm,  and  the  plaintiff"  requested  defendants  to  provide 
facilities  and  laborers  for  unloading.  This  they  refused  to  do 
and  the  cattle  were,  in  consequence  of  their  long  confinement, 
injured.  It  was  held  that  the  agreement  intended  that  the 
carrier  should  furnish  the  facilities  for  and  perform  the  labor 
of  unloading,  while  the  plaintiff'  should  direct  and  control  the 
laborers;  that  the  cattle  should  have  been  unloaded  during  the 
delay  ;  that  it  was  not  incumbent  on  the  plaintiff"  to  unload 
the  cattle  himself,  upon  defendant's  default,  though  by  procuring 
materials,  etc.,  he  might  have  prevented  the  damage ;  that  the 
circumstance  of  a  delay  at  a  point  where  the  carriers  had  no 
means  of  unloading,  and  they  could  not  by  reasonable  diligence 

^  Hawkins  v.  G.  W.  R.  R.  Co.,  17  contingencies  in  loading,  unloading, 
Mich.  57  ;  G.  W.  R.  R.  Co.  v.  Haw-  transportation,  conveyance,  and  other- 
kins,  18  ib.  427.  wise,    no    matter   how   caused.'-'      In 

2  Gannell  *;.  Ford,  5  L.  T.  N.  S.  604.  the  course  of  transportation  a  door  of 

In  Hood  V.  Grand  Trunk  Railway  Co.,  one  of  the  cars  became  open,  and  the 

20  Upper  Canada  C.  P.  361,  the  bill  cattle  fell  out.     The  carrier  was  held 

of  lading  for  certain  cattle   provided  not  to  be  liable 

that  the  shipper  should  undertake  "all  ^  3  Laws  (N.  Y.),  443. 
risk  of  loss,  injury,  damage,  and  other 

195 


I  259.]  BILLS   OF   LADING.  [CHAP.  XVIT. 

obtain  access  for  the  train  to  their  cattle-yard  for  unloading 
were  not  contemplated  by  the  contract,  and  that  the  defendants 
were  therefore  liable. 

§  258.  Quite  as  strict  a  construction  of  the  phrase  is  that  given 
in  Sisson  v.  Cleveland,  etc.,  Railroad  Company.^  Here,  among 
the  excepted  causes  of  loss.,  were  "  all  and  every  risk  of  injuries 
which  the  animals,  or  either  of  them,  may  receive  in  consequence 
of  any  of  them  being  wild,  unruly,  ....  escaping,  maiming  or 
killing  themselves,  or  each  other,  or  from  delays,  ....  and  risk 
of  any  loss  or  damage  which  may  be  sustained  by  reason  of  any 
delay,  or  from  any  other  cause  or  thing  in  or  incident  to,  or  from 
and  in  the  loading  or  unloading  of  the  stock."  It  was  held  by 
the  court,  Mr.  Justice  Cooley  giving  the  opinion,  that  these 
expressions  refer  to  loss  or  damage  by  reason  of  delay  in  load- 
ing or  unloading  only,  and  have  no  reference  to  other  losses 
which  the  delays  of  the  carrier  in  transit  may  cause  the  ship- 
pers. 

§  259.  The  carrier  is  not  responsible  for  a  misdelivery  of 
goods  consequent  upon  their  being  improperly  marked.^ 
"  Goods  ought  to  be  plainly  and  legibly  marked,  so  that  the 
owner  or  consignee  may  be  easily  known  and  if,  in  conse- 
quence of  omitting  to  do  so,  without  any  fault  on  the  part  of 
the  carrier,  the  owner  sustains  a  loss  or  any  inconvenience,  he 
must  impute  this  to  his  own  fault."^ 

Hence,  in  a  Massachusetts  case,  where  no  bill  of  lading  was 
given,  and  the  address  of  the  consignee  was  not  indicated  upon 
the  goods,  the  shipper  apparently  relying  upon  the  fact  that 
previous  goods  similarly  marked,  but  accompanied  by  bills  of 
lading,  had  been  properly  delivered,  it  was  held  that  this  evi- 
dence would  not  justify  a  finding  that  the  defendants'  agent 
"  ought  to  have  clearly  known"  the  destination  of  the  goods, 
and  that  under  the  circumstances  the  defendants  were  not 
bound  to  deliver.*  When  a  bill  of  lading  properly  describing 
the  consignee  has  been  signed  the  rule  is  otherwise.  It  would 
seem  that  the  carrier  is  then  bound  to  see  that  the  goods  are 
properly  marked  and  to  deliver  them  to  the  proper  consignee. 

1  14  Mich.  489.  '  Ware,   J.,    in    the  Huntress  Da- 

2  Angell   on    Cai-riers,    §    136,  and    veis,  82. 

note.  *  Fuin  v.  AVestern  R.  R.  Co. 

196 


CHAP.  XVIL]  EXCEPTIONS.  [§  260. 

Where  flour  in  sacks  of  different  sizes,  intended  for  two  con- 
signees, was  sent  on  board  a  vessel  witliout  any  mark  distin- 
guisliing  those  intended  for  either  consignee,  and  the  master 
gave  a  bill  of  lading  promising  to  deliver  to  one  person  a  specific 
number  of  bags  of  a  specified  weight,  it  was  held  that  he  was 
bound  to  deliver  the  exact  number  of  bags  of  such  sizes  as  would 
come  nearest  to  the  specified  weight ;'  and  where  a  trunk  had 
been  properly  delivered  to  the  owner  by  the  carrier,  but  was 
afterwards  taken  back  and  given  to  a  third  person  who  claimed 
it,  it  was  said  that  it  constituted  no  defence  to  the  action 
brought  by  the  owner  that  the  trunk  was  not  distinctly  marked, 
although  the  carrier  acted  in  good  faith.^ 

The  exception  is,  therefore,  perhaps  desirable  in  a  bill  of 
lading.     A  learned  author  on  this  subject  cites  a  Bengal  case, 
in  which  the  similar  phrase,  "  N"ot  accountable  for  inaccura- 
cies, obliteration,  or  absence  of  marks,  address,  description  of 
goods  shipped,"  is  said  to  be  designed  to  protect  the  ship-owner 
from  liability  for  the  misdelivery  of  the  cargo  if  he  can  show 
that  the  absence  or  obliteration  of  the  specific  marks  caused 
the  landing  at  a  port  other  than  the  port  of  destination ;  but 
that  unless  he  can  prove  this,  it  will  not  be  sulficient  for  him 
to  show  that  the  packages  or  cases  did  not  bear,  as  alleged,  on 
them  the  name  of  the  port  at  which  they  were  to  be  delivered.^ 
§  260.  Frequently  the  phrase  "  owner's  risk,"  or  sometimes 
simply  the  letters  "  0.  R.,"  are  written  across  or  indorsed  upon 
the  bill  of  lading  to  further  limit  the  carrier's  liability."     This 
has  been  construed  as  meaning  that  the  owner  assumes  all  risks 
arising  from  the  ordinary  dangers  of  transportation  by  the 
means°employed,  which  the  reasonable  and  ordinary  care  of  the 
common  carrier  might  be  insutficient  to  prevent.' 

In  Baltimore,  etc.,  Railroad  Co.  v.  Rathbone,«  it  is  said  that 
the  words  "owner's  risk,"  taken  in  connection  with  the  enume- 

1  Bradley  v.  Dumpace,  1  H.  &  C.  "  The  phrase  "general  release"  is 
521.  sometimes  used  in  the  same  way. 

2  The  Huntress  Daveis,  82.  ^  French  v.  Buffalo,  etc.,  R.  R.  Co., 

3  Madhub  Chunden  Dey  v.  Law,  4  Keyes,  108  ;  S.  C.  2  Abb.  App. 
13  Ben.  L.  R.  394  ;  Leggett  on  Bills  Dec.  196  ;  Hill  v.  Boston,  etc.,  R.  Cc, 
of  Lading,  p.  255.  144  Mass.  284. 

•      6  1  w.  Va.  87. 

197 


S  261.1  BILLS   OF   LADING.  [CHAP.  XVII. 

ration  of  specific  causes  of  loss  in  the  bill  of  lading,  are  under- 
stood and  intended  by  the  parties  to  limit  the  carrier's  liability 
to  loss  or  damage  such  as  might  result  from  ordinary  neglect,— 
that  is,  the  want  of  that  care  and  diligence  which  prudent  men 
usually  bestow  to  their  own  concerns. 

Where  the  carrier  has  two  rates  at  which  he  will  transport 
the  goods,  and  when  the  bill  of  lading,  if  the  lower  rate  be 
paid, contains  the  words  "owner's  risk,"  and  the  term  is  therein 
explained  as  being  intended  to  free  the  carrier  from  any  loss 
except  such  as  is  occasioned  by  his  own  wilful  misconduct,  the 
carrier  will  not  be  liable  for  the  damage  to  the  goods  occa- 
sioned by  the  improper  packing  of  his  servants.^ 

§  261.  The  phrase  does  not  include  cases  of  loss  occurring 
through  the  negligence  of  the  carrier  or  his  servants.^  For 
example,  it  does  not  cover  injury  from  delay  caused  by  the  car- 
rier's neglect,^  nor  loss  by  improper  stowage,*  nor  does  it  shield 
the  carrier  from  liability  when  the  goods  have  been  stolen  from 
him  through  the  lack  of  due  care.'  A  loss  by  embezzlement, 
it  is  said,  is  not  within  the  exception,  even  where  it  has  not 
been  shown  that  the  goods  were  embezzled  by  the  master  or 
crew,  or  by  any  other  person,  with  their  knowledge.^ 

1  Lewis  V.  Great  Western  Ry.  Co.,  Co.,  52  Mo.  390;  Hurkley  v.  N.  Y. 
26  W.  R.  255.  C.  &  H.  R.  R.  Co.,  3  Thomp.  &  C. 

The  clause  in  an  advertisement  of  a  (N.  Y.)  281 ;    M.  &  O.  R.  R.  Co.  v. 

stageline,  stating  route,  fare,  etc.:  "All  Jarboe,   41    Ala.    644;    Illinois,   etc., 

baggage  at  the  risk  of  the  owners"  R.  R.  Co.  v.  Morrison,  19  111.  136  ; 

does   not    apply  to  parcels   which    do  Wright  v.  Gaff,  6  Ind.  416;   German 

not  belong  to  passengers.     Dwight  v.  i\   Chicago,   etc.,   R.   R.  Co.,   38  la. 

Brewster,  18  Mass.  50.  127  ;  Wallace  v.  Sanders,  42  Ga.  486. 

2  JMoore  v.  Evans,  14  Barb.  (N.  Y.)  ^  D'Arc  v.  London,  etc.,  Ry.  Co., 
524;  Wells  v.  Stm.  Nav.  Co.,  8  N.  9  L.  R.  C.  P.  325. 

Y.  375 ;   Alexander  v.  Greene,  7  Hill  *  Thompson  v.   Chicago,  etc.,   Ry. 

(N.  Y.),  533;   Sturgeon  v.  St.  Louis,  Co.,   27  la.  561.     But  see   Lewis   v. 

etc.,  R.  R.  Co.,  65  Mo.  569  ;  Wooden  Great  Western  Ry.,  26  W.  R.  255. 

V.    Austin,    51    Barb.    9;     Cohen    v.  ^  Simon  v.   S.   S.  Fung  Shuey,  21 

Southeastern  Ry.  Co.,  L.  R.,  2  Ex.  D.  La.  Ann.  Rep.  363. 

253 ;    Westcott   v.    Fargo,    63    Barb.  ^  Schieffelin  v.   Harv-ey,    6    Johns. 

(N.  Y.)  349;  Nashville,  etc.,  R.  R.  (N.  Y.)  170;  S.  C,  Anthon's  N.  P. 

Co.  V.  .Jackson,  6  Heisk.  (Tenn.)  271  ;  76. 
Ketchum  v.  American,   etc.,   Express 

198 


CHAP.  XVII.]  EXCEPTIONS.  [§  262. 

The  question  of  what  is  negligence  is  here  as  ever  a  question 
to  be  decided  under  the  circumstances  of  each  case.^  Where 
the  carrier  accepts  for  transportation  in  the  winter  season,  to 
ship  half-way  across  the  continent  delicate  fruits,  the  character 
of  his  employment  clearly  implies  that  he  will  ship  them  in 
such  cars,  and  exercise  such  diligence  as  may  be  reasonably 
necessary  for  their  safe  passage  to  their  destination.  Having 
failed  to  do  this,  he  cannot  escape  liability,  although  the  bill 
of  lading  under  which  the  shipment  was  made  was  endorsed 
"  general  release."^ 

Proof  that  the  country  w^as  in  a  state  of  war ;  that  the  de- 
fendant's railroad  was  often  used  by  the  military  authorities, 
and  that  there  was  great  want  of  certainty  and  safety  in  the 
transportation  of  freight,  is  not  such  o.  prima  facie  showing  of 
diligence  as  will  exempt  the  carrier.^  So  also  the  fact  that  the 
plaintiff"'s  goods  were  received  under,  a  contract  that  they  were 
to  remain  in  charge  of  a  guard  of  troops,  "  the  company  accept- 
ing no  responsibility,"  does  not  relieve  the  carrier  from  liability 
for  a  loss  arising  wholly  from  his  own  neglect.^ 

§  262.  Fraud  or  misrepresentation  will  avoid  the  effect  of 
this  exception  and  will  restore  the  carrier  to  his  full  common- 
law  liability.  In  Dauchy  v.  Silliman,''  the  carrier  received  rye  of 
the  plaintiff  to  be  carried  under  a  special  agreement  at  the  risk 
of  the  plaintiff,  the  plaintiff  to  have  the  cargo  insured  at  the 
defendant's  expense.  Owing  to  the  vessel  being  of  a  different 
class  from  that  represented  by  the  defendants,  the  insurance 

'  In   certain   cases   it    is   said   that  the  carrier,  and  is  certainly  not  the  law 

notwithstanding  the  existence  of  the  in  such  States  as  do  not  hold  to  this 

phrase  we  are  considering  in  the  bill  of  doctrine.    Ketchum  v.  American,  etc., 

lading  the  carrier   must  make   out  a  Express  Co.,   52   Mo.    390;    Mobile, 

j^rnna /acje  case  that  the  loss  was  not  etc.,   R.   R.   Co.   v.   Jarboe,   41   Ala. 

caused  by  negligence,  or  in  other  words  644. 

that  the  proof  of  non-delivery  of  the  ^  Merchants',    etc..    Trans.    Co.    v. 

goods  is  all  that  is  required  to  bind  the  Cornforth,  3  Col.  280. 

carrier  unless  he  can   rebut  this  pre-  '  Mobile,  etc.,  R.  R.  Co.  v.  Jarboe, 

sumption  by  proof  of  care  and  dili-  41  Ala.  644. 

gence.     This  may  be  considered  as  an  *  Martin  v.  Great  Indian,  etc.,  Ry. 

extreme  application  of  the  policy  of  Co.,  3  L.  R.  Ex.  9. 

the  law  of  some   States  of  throwing  *  2  N.  Y.  S.  C.  (Lansing),  361. 
the  burden  of  proof  of  diligence  upon 

199 


I  264.]  BILLS   OF   LADING.  [CHAP.  XVII. 

could  not  take  place.  The  plaintiff  then  forbade  the  trans- 
portation, but  the  defendants  proceeded  in  spite  of  the  prohibi- 
tion, and  the  goods  were  damaged  by  a  collision  while  in  transit. 
It  was  held  that  the  misrepresentation  rendered  the  contract  as 
first  made  void  and  that  the  carriers  were  to  be  treated  as 
though  they  had  taken  the  goods  subject  to  the  common-law 
liability. 

§  263.  The  phrase  "owner's  risk"  is  common  in  contracts  for 
the  carriage  of  live  stock  and  it  has  been  held  that  it  is  com- 
petent for  the  carrier  to  restrict  his  liability  in  that  way.^ 

Under  such  circumstances  negligence  will  not  be  presumed. 
Where  horses  carried  at  the  owner's  risk  were  injured  on  the 
defendants'  railroad  by  the  breaking  of  a  car  wheel,  new  and 
apparently  without  defect,  and  evidence  of  negligence  other 
than  the  fact  of  loss  was  wanting,  it  was  held  not  to  be  error 
to  direct  a  verdict  for  the  carrier.^  Where  the  action  was  lor 
an  injury  to  hogs  by  reason  of  delay  in  their  transportation,  it 
was  said  that  in  respect  to  the  time  of  delivery,  a  carrier  is 
responsible  only  for  due  diligence  and  may  excuse  delay  by 
reason  of  accident  or  misfortune,  though  not  inevitable.  It  is 
enough  that  he  use  proper  endeavors  to  prevent  delay. ^ 

§  264.  The  English  cases  construe  the  liability  of  the  carrier 
of  animals  under  such  exceptions,  yet  more  liberally.  In  Chip- 
pendale V.  Yorkshire,  etc..  Railway  Company*  the  plaintifi''8 
cattle  were  being  carried  by  the  defendant  under  a  ticket,  at 
the  foot  of  which  was  the  clause :  "  N.  B. — This  ticket  is  issued 
subject  to  the  owners  taking  all  risks  of  conveyance  whatever, 
as  the  company  will  not  be  liable  for  any  injury  or  damage, 
however  caused,  and  accruing  to  live  stock  of  any  description, 
travelling  upon  the  Y.  &  L,  Railway,  or  in  their  vehicles."  The 
truck  in  which  the  animals  were  shipped  was  defectively  con- 
structed and  unfit  for  use,  and  during  the  transit  some  of  the 
cattle  becoming  frightened  broke  out  and  were  killed.  It  was, 
nevertheless,  held  that 'there  was  no  implied  stipulation  that 

'  Morrison  v.  Construction  Co.,  44  ^  Nashville,  etc.,  R.  R.  Co.  v.  Jack- 

Wis.  405.  son,  6  Heisk.  (Tenn.)  271. 

"  Morrison  v.  Construction  Co.,  su-  ^  15  Jur.  1106;   S.  C,  21  L.  J.  Q. 

Tpra.  B.  22,  7  Ry.  Cas.  824. 
200 


CHAP.  XVII.]  EXCEPTIONS.  [§  264. 

the  truck  should  be  fit  for  the  conveyance  of  cattle  and  that 
the  defendants  were  protected  by  the  terras  of  their  contract. 

In  Austin  v,  Manchester,  etc.,  Railway  Company^  there  was 
issued  a  note  or  ticket  containing  the  following  notice:  "This 
ticket  is  issued  subject  to  the  owner's  undertaking  to  bear  all 
the  risk  of  injury  by  -conveyance  and  other  contingencies,  and 
the  owner  is  required  to  see  to  the  efficiency  of  the  carriage  be- 
fore he  allows  his  horses  or  live  stock  to  be  placed  therein  ;  the 
charge  being  for  the  use  of  the  railway,  carriages  and  locomo- 
tive power  only,  the  company  will  not  be  responsible  for  any 
alleged  defects  in  their  carriages  or  trucks,  unless  complaint  be 
made  at  the  time  of  booking,  or  before  the  same  leave  the  sta- 
tion, nor  for  any  damages,  however  caused,  to  horses,  cattle,  or 
live  stock  of  any  description  travelling  upon  their  railway  or  in 
their  vehicles."  It  was  held  that  giving  to  the  words  of  the 
contract  their  most  limited  meaning  they  must  apply  to  all 
risks  of  whatever  kind  and  however  arising  to  be  encountered 
in  the  course  of  the  journey  and,  therefore,  that  the  company 
were  not  responsible  for  injury  done  to  a  horse  from  the  firing 
of  a  wheel  in  consequence  of  the  neglect  of  the  servants  of  the 
company  to  grease  it. 

The  declaration  in  Shaw  v.  York,  etc.,  Railway  Company^ 
alleged  that  the  defendant  was  proprietor  of  a  railwa}^,  and  that 
it  had  received  from  plaintiti:'a  horse  to  be "'  safely  and  securely" 
carried  to  its  destination  for  reward.  Plaintiff  had  pointed  out 
a  defect  in  one  of  the  partitions  of  a  horse  box  shown  to  him 
for  the  reception  of  his  horse.  A  servant  of  defendants  then  en- 
deavored to  make  secure  the  partition  and  assured  the  plaintiff 
that  he  had  done  so.  The  horse  was  carried  in  the  box  and 
the  horse's  death  was  occasioned  ■  during  the  journey  by  the 
insecurity  of  the  partition.  At  the  foot  of  the  receipt  given  for 
the  horse  was  written  :  "  IST.  B. — This  ticket  is  issued  subject 
to  the  owner's  undertaking  all  risks  of  conveyance  whatsoever? 
as  the  company  will  not  be  responsible  for  any  injury  or  dam- 
age (however  caused)  occurring  to  horses  or  carriages  while 
travelling,  or  in  loading  or  unloading."   Lord  Denman  held  that 

1  21  L.  J.  C.  P.  179;  S.  C.  10  C.  2  53  j^r.  335;  13  Q.  B.  347;  18  L. 
B.  453,  16  Jur.  763,  7  Ry.  Cas.  300.     J.  Q.  B.  181  ;  6  Ry.  Cas.  87. 

201 


§  265.J 


BILLS   OF   LADING. 


[chap.  XVII. 


this  memorandum  formed  part  of  the  contract  for  the  convey- 
ance of  the  horse  and  that  this  disproved  the  averment  in  the 
declaration  tliat  the  defendants  received  the  horse  to  be  "  safely 
and  securely"  carried. 

§  265.  In  this  connection  it  is,  however,  to  be  noted  in  pass- 
ing that  all  the  above  cases  were  decided  prior  to  the  passage 
of  the  Railway  and  Canal  Traffic  Act  of  1854,'  when  the  rigor 
of  the  common  law  respecting  the  carrier's  liability  had,  in 
England,  been  greatly  modified.  The  act  of  1854  may  be  said 
to  have  restored  the  common  law  in  this  regard.^ 


1  17  and  18  Vict.  c.  31. 

2  Section  7  of  this  act  provides  that 
a  railway  company  ' '  shall  be  liable  for 
the  loss  of  or  injury  to  any  horse,  cat- 
tle, or  other  animals,  or  to  any  arti- 
cles, goods,  or  things  in  the  receiving, 
forwarding,  or  delivering  thereof,  oc- 
casioned by  the  neglect  of  such  com- 
pany or  its  servants,  notwithstanding 
any  notice  or  condition  made  and  given 
by  such  company,  in  anywise  limiting 
such  liability."  This  is  extended  by 
section  16  of  the  Regulation  of  Rail- 

202 


ways  Act,  1868  (31  and  32  Vict.  c. 
119),  to  the  traffic  on  board  steamers 
belonging  to  or  used  by  railroad  com- 
panies. It  has  been  held  that  the  act 
of  1 854  applies  to  the  baggage  of  pas- 
sengers, and  that  no  phrase,  such  as 
"at  passenger's  risk,"  or  the  like,  will 
exempt  the  carrier  from  the  results  of 
his  own  negligence.  Cohen  v.  South- 
eastern Ry.  Co.,  L.  R.  2  Ex.  D.  253, 
overi-uling  Stewart  v.  London,  etc., 
Ry.  Co.,  3  H.  &  C.  135. 


CHAP.  XVIII.] 


EXCEPTIONS. 


[§  266. 


CHAPTER  XVIII. 


EXCEPTIONS  Continued— PERILS  OF  THE  SEA. 


"Perils  of  the  sea,"  §  266. 

Perils  of  the  sea — definition,  §  267. 

Perils  of  the  sea — inland  navigation, 

§  268. 
What   are  perils  of  the  sea,  §§  269, 

270. 
Custom  affecting  the  interpretation  of 

the  clause,  §  271. 
What  are  not  perils  of  the  sea,  §§  272, 

273,  274. 


Perils    of    the    sea     and     negligence 

causing  loss,  §  275. 
Perils  of  the  sea  must  be  shown  to  be 

necessary  cause  of  loss,  §  276. 
Effect  of  clause  when  goods  are  stowed 

on  deck,  §  277. 
Duty  to  protect  the  goods  after  damage 

by  a  peril  of  the  sea,  §  278. 


§  266.  It  would  seem  that  the  phrase  "  perils  of  the  seas"  was 
to  be  found  in  charter  parties  as  early  as  the  reign  of  Charles  I. 
In  Pickering  v.  Barclay,^  decided  in  the  latter  part  of  that 
reign,  a  ship  having  been  overpowered  and  plundered  on  the  high 
seas  by  pirates,  the  question  was  raised  whether  the  carrier  was 
exonerated  by  this  exception  occurring  in  his  charter  party 
and  evidence  was  taken  to  show  the  usage  of  the  trade,  to 
aid  in  the  interpretation  of  the  phrase.  More  recently  many 
analogous  phrases  have  been  embodied  in  the  bill  of  lading. 
Among  these,  such  expressions  as  the  following:  dangers  of 
the  sea,  perils  of  the  river,  perils  of  the  lake,  dangers  of  the 
river,  dangers  of  the  lake,  perils  of  navigation,  dangers  of 
navigation,  dangers  incident  to  the  navigation  of  the  river, 
river  risks,  etc.  The  custom  of  carriers  now  is,  to  group 
together  a  number  of  such  expressions  in  the  hope  of  including 
one  sufficiently  general  in  its  application  to  relieve  from  lia- 
bility in  any  case  of  loss.  Whether,  however,  such  expressions 
add  to  the  force  and  scope  of  the  ancient  phrase  may  well  be 


'   Style,   132;   S.  C,  2  Rail.  Abr.  248. 

203 


§  267.]  BILLS   OF   LADING.  [CHAP.  XVIII. 

doubted.  They  have  uniformly  been  treated  by  the  courts  as 
strictly  synonymous  with  perils  of  the  sea,^  and  shall  be  here 
so  discussed.  The  phrases  "  inevitable  accidents"  and  "  un- 
avoidable accidents"  have  been  frequently  placed  in  this  cate- 
gory-' 

§  267.  The  definitions  of  perils  of  the  sea  to  be  found  in  the 

reports  are  numerous,  ranging  from  those  in  a  class  of  cases  by 
no  means  small,  which  would  make  the  phrase  to  be  not  more 
inclusive  than  the  common  law  exception,  the  act  of  God ,3  to 
the  other  extreme  of  which  a  recent  decision  of  Mr.  Justice 
Woods  may  be  given  as  a  type,  in  which  he  asserts  that  "  by 
dangers  of  the  sea  are  meant  all  unavoidable  accidents  from 
which  common  carriers  by  the  general  law  are  not  excused 
unless  they  arise  from  act  of  God."*  Clearly  the  phrase  is 
intended  to  be  more  inclusive  than  the  common  law  exception.' 
Clearly,  too,  it  is  intended  to  include  losses  occurring  partially 
through  human  agency  as  well  as  those  to  which  the  action  of 
the  elements  has  alone  contributed.^  On  the  other  hand  the 
phrase  cannot  be  made  to  cover  every  hazard  and  danger  froria 
the  beginning  to  the  end  of  the  voyage,  of  whatsoever  kind, 
but  will  be  limited  to  those  which  arise  from  the  action  of  the 
elements,  or  which  are  peculiar  to  the  water.^  In  Stephens 
Transportation  Company  v.  Tuckerman,*  dangers  of  the  sea  are 
said  to  be  those  accidents  "  peculiar  to  navigation  that  are  of 
an  extraordinary  character  or  arise  from  an  irresistible  force  or 
overwhelming  power,  which  can  not  be  guarded  against  by  the 

'  Harrison    v.    Hixson,    4    Blackf.  Lawson    on     Contracts    of     Carriers, 

(Ind.)  226  ;  Jones  v.  Pitcher,  3  Stew,  §  165. 

&  P.  (Ala.)  135  ;  McArthur  v.  Sears,  »  Jones  v.  Pitcher,  3    Stew.  &.   P. 

21  Wend.  (N.  Y.)  190;    Johnson  v.  (Ala.)  135. 

Friar,  4  Yerg.  (Tenn.)    48;    White-  ••  Dibble  v.  Morgan,  1  Woods,  411. 

sides  V.  Russell,  8  W.  &  S.  (Pa.)  44  ;  ^  Ferguson'  r.   Brent,    12   Md.    9  ; 

McGregor  y.  Kilgore,    6   Ohio,    358;  McArthur  y.  Sears,  21  Wend.  (N.  Y.) 

Southern  Express  Company  v.  Palmer,  190;   Redpath  v.  Vaughan,   52  Barb. 

48  Ga.  85.  (N.  Y.)  489. 

2  Fowler    v.  Davenport,    21     Tex.  ^  McArthur    v.    Sears,    21     Wend. 

626;    March    v.    Blythe,   1    McCord,  (N.  Y.)  190. 

360;  Friend  v.  Wood,  6  Gratt.  (Va.)  ^  Merril  v.  Arey,  3  Ware,  215. 

189;  U.  S.  W.Power,  6  Mon.  T.  271;  »  33  N.  J.  543. 

204 


CHAP.  XVIII.]  EXCEPTIONS.  [§  268. 

ordinary  exertions  of  human  skill  and  prudence."  This  would 
seem  to  be  more  exact  than  the  definition  of  Mr.  Justice  Story^ 
in  which  he  includes  "only  such  losses  as  are  of  an  extraordi- 
nary nature  or  arise  from  some  irresistible  force  or  some  over- 
whelming power  which  caimot  be  guarded  against  by  the 
ordinary  exertions  of  human  skill  and  prudence."^ 

§  268.  Applying  this  principle  to  internal  commerce,  it  will 
be  seen  that  "  dangers  of  the  river  or  lakes"  in  a  bill  of  lading 
mean  such  natural  accidents  incident  to  river  or  lake  naviga- 
tion as  could  not  have  been  avoided  by  skill,  judgment  and 
foresight.^  Thus,  also,  the  dangers  of  navigation  of  a  public 
canal  are  such  as  are  incident  to  a  trip  made  in  conformity 
to  the  public  regulations  of  the  canal,  of  which  the  carrier  is 
bound  to  take  notice,  while  for  damages  following  the  breach 
of  such  regulations  he  will  be  liable.'*  Where  the  clause  "  risk 
of  boats  excepted,"  or  a  similar  phrase,  is  added  to  the  usual 
form  of  the  exception  under  consideration,  it  would  seem,  on 
the  authority  of  Johnston  v.  Benson,'  that  the  carrier's  immu- 
nity from  responsibility  under  the  terms  of  the  bill  of  lading  is 
extended  to  cover  the  goods  after  they  have  been  taken  from 

'  In  "The  Reeside,"  2  Sumn.  571.  Turney  v.  Wilson,  7  ib.  340;   Slocum 

2  Richards  v.  Hansen,  1  Fed.  Rep.  v.    Fairchild,    7    Hill    (N.    Y.)    292; 

54  ;  Tysen  i>.  Moore,  5G  Barb.  (N.  Y.)  Fairchild  t;.   Slocum,   19   Wend.   (N. 

442  ;  The  Northern  Bell,  1  Biss.  529  ;  Y.)  329. 

The  Niagara  v.  Cordes,   21  How.  7  ;        It   is   to  be   noted,    however,    that 

Bearse  v.  Ropes,  1  Sprague,  331  ;  The  navigation    on    the    great    lakes    has 

Brantford  City,   29  Fed.    Rep.    373;  been  held  not  to  be  inland  navigation 

The  Polynesia,  30  ib.   210  ;  The  Ber-  in  the  sense  of  coming  under  the  Acts 

genseren,  36    ib.    700  ;   The  Willard,  of  Congress  regulating  the  liability  of 

28  ib.  759.  carriers.       Moore    v.    Transportation 

Chancellor   Kent    thus   defines   the  Co.,  24  Howard,  1. 
phrase  (Kent's  Commentaries,  vol.  iii.         In   Transportation  Co.  v.  Dormer, 

p.  301,  tenth  ed.)  :     "Perils   of    the  11   Wall.   129,  it  is  said  that  dangers 

Sea"  denote  natural  accidents  peculiar  of  lake  navigation  include  all  the  ordi- 

to  that  element,  which  do  not  happen  nary  perils  which  attend  navigation  on 

by  the  intervention  of  man,  nor  are  to  the   lakes,  among   others   that   which 

be    prevented    by    human    prudence,  arises   from   the    shallowness    of    the 

For   other  definitions   see  Arnold   on  waters  at  the  entrance  of  harbors. 
Marine  Insurance,  vol.  ii.  p.  817.  ''  Atwood   v.   Reliance  Transporta- 

8  Hill   V.    Sturgeon,    28    Mo.    323;  tion  Co.,  9  Watts  (Pa.),  87. 
Johnson    v.  Friar,    4   Yerg.    (Tenn.)        s  4  Moore,  90;   S.  C.  B.  &  B.  454. 
48 ;  Gordon   v.  Buchanan,  5  ib.   70 ; 

205 


269.] 


BILLS   OF   LADING. 


[chap.  XVIII. 


the  ship  and  are  being  landed  in  small  boats,  as  in  certain  parts 
of  the  world  is  necessary.^ 

§  269.  The  following  have  been  held  to  be  within  this  ex- 
ception or  its  equivalents :  The  unavoidable  stranding  of  the 
vessel  f  the  running  upon  an  unknown  roek,^  or  upon  a  hidden 
obstruction  in  a  river,  such  as  a  tree  recently  fallen,*  or  a  snag 
recently  carried  into  the  channel ;'  storm  or  stress  of  weather ;® 
a  sudden  squall  f  the  tossing  of  a  ship  in  tempestuous  weather;^ 
the  shipping  of  water  in  a  storm  ;®  the  necessary  jettison  of  the 
cargo  in  a  storm  ;^*'  delay  caused  by  storm ,*^  fog,'''  piracy,"  the 


^  Ordinarily,  damage  to  a  wharf- 
boat  is  not  a  "  peril  of  the  sea."  St. 
Louis,  etc.,  11.  R.  Co.  v.  Smuck,  49 
Ind.  302. 

2  Hahn  V.  Corbett,  2  Bing.  205; 
Phcenix  Ins.  Co.  v.  E.  &  W.  T.  Co., 
10  Biss.  18  ;  Bostwick  v.  B.  &  O.  R. 
R.  Co.,  55  Barb.  (N.  Y.)  137. 

3  Fletcher  v.  Inglis,  2  B.  &  Aid. 
315;  Turney  v.  Wilson,  7  Yerg. 
(Tenn.)  340;  The  Keokuk,  1  Biss. 
522 ;  Van  Hern  v.  Taylor,  2  La. 
Ann.  Rep.  587  ;  Boyce  v.  Welch,  5  ib. 
623  ;  Collier  v.  Valentine,  11  Mo.  299. 

"The  rule  which  imputes  careless- 
ness to  a  captain  whose  boat  strikes  a 
known  rock  or  shoal  unless  driven  by 
a  tempest  is  only  applicable  to  the 
navigation  of  the  ocean,  where  rocks 
and  shoals  are  marked  upon  maps  and 
may  be  avoided,  and  does  not  apply 
to  the  navigation. of  the  Western  rivers. 
There  each  case  must  be  governed 
by  its  own  circumstances  and  be 
tested  by  the  course  usually  pursued 
by  skilful  pilots  in  such  cases."  Col- 
lier V.  Valentine,  11  Mo.  299. 

■•  Hibernia  Ins.  Co.  v.  St.  Louis 
Trans.  Co.,  5  McCrary,  397. 

*  The  Favorite,  2  Biss.  502 ;  Red- 
path  V.  Vaughan,  52  Barb.  (N.  Y.) 
489,  affirmed  48  N.  Y.  655 ;  Johnson 
V.  Friar,  4  Yerg.  (Tenn.)  48 ;  Steele 
V.  McTyer's  Admr.,  31  Ala.  667; 
206 


Hib.  Ins.  Co.  v.  St.  Louis  Trans. 
Co.,  120  U.  S.  166. 

6  The  Neptune,  6  Blatchf.  193; 
Hooper  v.  Rathbone,  Taney  Dec. 
519. 

7.  Slocum  V.  Fairchild,  19  Wend. 
(N.  Y.)  329,  affirmed  7,  Hill  (N. 
Y.),  292;  The  Lady  Pike,  2  Biss. 
141.  But  see  The  Mollle  Mohler,  ib. 
505,  affirmed  21  AVall.  230. 

8  Gabay  w.  Lloyd,  3  B.  &  C.  793  ; 
Christie  v.  The  Craigton,  41  Fed. 
Rep.  62. 

^  Hooper  v.  Rathbone,  1  Taney 
Dec.  519;  Lemaitre  r.  Merle,  2 
Robin  (La.),  402;  Letchford  v.  The 
Golden  Eagle,  1 7  La.  Ann.  Rep.  9  ; 
Bradley  Fertilizer  Co.  v.  The  Edwin 
L.  Morrison,  40  Fed.  Rep.  501. 

'°  Van  Syckel  u.The  Thomas  Ewing, 
Crabbe,  405  ;  Smith  v.  Shepherd,  Ab- 
bot on  Shipping,  Pt.  IV.,  c.  IV.,  §  2, 
p.  235-287  (10th  ed.)  ;  Nemours  v. 
Vance,  19  How.  162;  Lawrence  v. 
Minturn,  17  ib.  100;  The  Ports- 
mouth, 9  Wall.  682 ;  Ins.  Co.  v. 
Sherwood,  14  How.  365. 

1'  U.  S.  V.  Hall,  2  Wash.  C.  C.  366  ; 
Lewis  y.The  Success,  18  La.  Ann.  Rep. 
1  ;  Jackson  v.  Union  Marine  Ins.  Co., 
44  L.  J.  C.  P.  27. 

12  The  Rocket,  1  Biss.  354  ;  The 
Portsmouth,  9  Wall.  682. 

i!*  Pickering  v.  Barclay,  Style,  132; 


CHAP.  XVIII.]  EXCEPTIONS.  [§  270. 

wilful  but  not  the  barratrous  act  of  the  crew ','  the  sweating  of 
the  cargo  ;'  dampness  caused  by  a  change  of  climate  f  the  acci- 
dental sinking  of  the  ship  ;*  the  breaking  of  tackle ;»  collision  f 
the  deflection  of  the  needle  of  the  compass •/  the  "blowing"  of 
a  vessel,^  or  the  opening  of  the  seams  of  a  ship,  caused  by  strain- 
ing in  rough  weather.® 

§  270.  In  "  The  Juniata  Paton"^"  the  libellant  bad  shipped 
certain  hogsheads  of  sugar,  to  be  delivered  in  good  order,  "  the 
dangers  of  navigation  excepted."  The  vessel  reached  the  port 
of  Milwaukee,  its  place  of  destination,  on  a  dark  and  stormy 
night  and  the  captain,  mistaking  a  light  on  shore  for  the  pier 
light,  it  being  in  the  same  range  and  resembling  the  pier  light, 
in  attempting  to  enter  the  harbor,  ran  the  vessel  aground.  It 
appearing  that  there  had  been  no  lack  of  care  on  the  part  of  the 
carrier ;  this  was  held  to  be  a  loss  within  the  exception. 

A  loss  may  be  by  a  "peril  of  the  sea,"  though  happening  in 
port.  Thus  a  vessel  laden  with  goods  had  arrived  in  port ;  taken 
into  a  dock  to  discharge  her  cargo,  and  for  this  purpose  was 
fastened  by  tackle  on  one  side  to  a  loaded  lighter  and  on  the 
other  to  a  barge  lying  between  her  and  the  wharf.  The  tackle 
by  which  she  was  fastened  to  the  lighter  broke,  in  consequence 
of  which  she  careened  over  and  water  got  into  her  ports  and 
the  goods  yet  on  board  were  damaged.  This  loss  was  within  the 
exception  in  the  bill  "  all  and  every  dangers  and  accidents  of 

Barton  v.  WolUford,  Comb.  56  ;  Morse  Me.  132  ;  The  New  Jersey,  01c.  444  ; 

V.  Slue,  1  Vent.  190;   1  Kent's  Com.,  The  Bernina,   L.  R.,   12    P.   D.    36; 

p.  302;  Abbot  on  Shipping,  Pt.  IV.,  Peters  v.  Warren   Ins.   Co.,    14    Pet. 

c   VI     §  2,  p.  288  (10th  ed.)  ;   1  Kay  99  ;  Marsh  v.  Blythe,  1  McCord,  360; 

on  Shi'pping,  p.  411.  Van  Horn  v.  Taylor,  2  La.  Ann.  Rep. 

1  Dixon  V.  Sadler,  9  L.  J.  Ex.  48.  587;    Daggett  v.  Shaw,   3  Mo.   189; 

2  Clark  V.  Barnwell,  12  How.  272;  Hays  u.  Kennedy,  3  Grant  (Pa.),  351. 
The  Star  of  Hope,  17  Wall.  651.  "'  The  Rocket,  1  Biss.  354. 

3  Rich  V.  Lambert,   12  How.  347;  »  Crosby  v.  Grinnell,    9  N.  Y.  Leg. 
Clark  V.  Barnwell,  ib.  272.  Obs.   281  ;     East   Tenn.,  etc.,   R.  R. 

*  Kirk  V.  Folsom,  23  La.  Ann.  Rep.  Co.  r.  Wright,  76  Ga.  532. 

584;   Palmer  v.  Lorillard,   16  Johns.  «  Rich  v.  Lambert,    12  How.  347. 

(N.  y.)  348.  B"t  SC6  Bearse  v.  Ropes,  1  Sprague, 

5  Lam-ie  v.  Douglas,   15  M.  &  W.  331. 


745. 

s  Pilasted  v.   B.  K.    Nav.  Co.,  27 


1  Biss.  15. 

207 


I  271.]  BILLS   OF   LADING.  [CHAP.  XVIII. 

the  seas  and  navigation."^  So  in  Davidson  v.  Burnand,^  where 
a  steamer  was  loading  in  a  harbor  and  her  draught  increased 
by  reason  of  the  weight  of  the  cargo  until  the  discharge  pipe 
was  brought  below  the  surface  of  the  water,  which  then  flowed 
down  the  pipe  under  the  valve,  and  some  cocks  or  valves  in 
the  machinery  having  been  negligently  left  open  water  flowed 
into  the  hold  and  injured  the  cargo,  this  was  said  to  come  with- 
in the  exception. 

§  271.  It  has  been  held  in  some  cases  that  evidence  of  a  cus- 
tom may  be  introduced  to  define  the  phrase  "  perils  of  the  sea,"' 
and  a  series  of  Alabama  cases  go  to  the  extent  that  by  evidence 
of  mercantile  usage  and  understanding  even  loss  by  fire  may  be 
brought  within  the  purview  of  this  exception.*  This  is  not 
elsewhere  the  law  (if,  indeed,  it  is  in  that  State**),  and  the 
Supreme  Court  of  the  United  States  have  held  the  reverse  in 
Parrison  v.  Memphis  Insurance  Co.^ 

In  the  New  York  case  of  Aymar  v.  Astor^  evidence  to  shovir 
that  injuries  by  rats  were  considered,  by  custom,  as  among  dan- 
gers of  the  seas  was  excluded  and  in  "  The  Reeside,"**  Mr.  Jus- 
tice Story  refused  to  admit  evidence  to  the  eflect  that  "  dangers 
of  the  seas"  extend  by  usage  to  all  losses,  except  those  arising 
from  neglect,  in  these  words :  "  The  true  and  appropriate  ofiEice 
of  a  usage  or  custom  is  to  interpret  the  otherwise  indeterminate 
intention  of  parties  and  to  ascertain  the  nature  and  extent  of 
their  contracts  arising,  not  from  express  stipulations,  but  from 
mere  implications  and  presumptions  and  acts  of  a  doubtful  and 
equivocal  character.  It  may  also  be  admitted  to  ascertain  the 
true  meaning  of  a  particular  word,  or  of  particular  words,  in  a 
given  instrument,  when  the  word  or  words  have  various  senses, 
some  common,  some  qualified  and  some  technical,  according  to 
the  subject-matter  to  which  they  are  applied.     But  I  apprehend 

'  Laurie  v.  Douglas,   15  M.  &  W.  Sampson  v.  Lindsay,  6  Porter  (Ala.), 

74G.  123;    Steele   v.  McTyer's   Adm.,  31 

2  L.  R.,  4  C.  P.  117.  Ala.  667. 

^  In  the  early  times  such  evidence  ^  Boon  r.  The  Belfast,  40  Ala.  184; 

seems  to  have  been  admitted.     Pick-  Lawson  on  Contract  of  Carriers,  §  13. 

ering  v.   Barclay,    2   Roll.    Ab.    248;  M9  How.  312. 

Barton  v.  Wolliford,  Comb.  56.  ">  6  Cow.  266. 

*  Hiblery.  McCartnev,  31  Ala.  501  ;  »  2  Sura.  567. 

208  ' 


CHAP.  XVIII.] 


EXCEPTIONS. 


[§  272. 


it  can  never  be  proper  to  resort  to  any  usage  or  custom  to  control 
or  vary  the  positive  stipulations  of  a  written  contract  and  a 
fortiori  not  in  order  to  contradict  tlieni." 

§  272.  The  following  have  been  held  not  to  fall  within  the 
exception  under  consideration — loss  by  fire,^  by  rats,^  by  ver- 
min,3  by  worms  destroying  the  ship's  bottom,*  by  embezzle- 
ment,^  b}^  theft  or  robbery  which  is  not  piracy,®  by  barratry,' 
by  the  injurious  effects  of  other  goods,^  by  the  shifting  of  a 
buoy,^  by  the  desertion  or  insubordination  of  seamen,^"  by  the 
explosion  of  the  boiler  of  a  steamboat,"  by  the  plundering  of 
the  ship  by  a  custom-house  officer  while  in  charge  of  it,'-  by  the 
depredations  committed  on  the  ship's  stores  or  cargo  by  her 
passengers  and  crew,  in  consequence  of  a  scarcity  of  provisions, 
during  a  long  voyage.'^  These  and  similar  causes  of  loss  are 
excluded  from  the  operation  of  the  exception  by  the  fact  that 
they  are  not  such  dangers  as  "  proceed  from  or  are  peculiar  to 
the  water."!* 


^  Garrison  v.  Memphis  Ins.  Co.,  19 
How.  312  ;  Gilmore  v.  Carman,  1  S.  & 
M.  (Miss.)  279;  Cox  v.  Peterson,  30 
Ala.  608 ;  Merrill  i'.  Arey,  3  Ware, 
215;  Union  Mutual  Ins.  Co.  v.  In- 
dianapolis, etc.,  R.  R.  Co.,  1  Disney, 
480  ;  Hong  Konp;,  etc..  Banking  Corp. 
r.  Baker,  7  Bom.  H.  C.  Eep.  O.  C. 
J.  203.  But  see  U.  S.  v.  Power,  6 
Mon.  T.  271  (River  risk  excepted). 

2  Kay  V.  Wheeler,  2  L.  R.  C.  P. 
302  ;  Lavemie  v.  Drury,  8  Exch.  1C6  ; 
S.  C,  22  L.  J.  Exch.  2.  Though  every 
possible  precaution  be  taken  to  prevent 
the  loss,  it  is  still  without  the  excep- 
tion. The  Isabella,  8  Ben.  139;  The 
Carlotta,  3  Asp.  Mar.  Law  Cas.  N. 
S.  4.56  ;  4  Irish  Jur.  237  ;  Aymar  v. 
Astor,  6  Cow.  266  ;  Hunter  v.  Potts, 
4  Camp.  203. 

3  The  Miletus,  5  Blatchf.  335. 
*  Rohl  V.  Parr,  1  Esp.  445. 

5  King  V.  Shepherd,  3  Story,  349. 

14 


^  lb.  Abbot  on  Shipping,  pt.  4,  c. 
6,  §  2,  p.  289  (10th  ed.). 

■^  The  Chasca,  L.  R.,  4  Adm.  446  ; 
S.  C,  44  L.  J.  Adm.  17;  The  Gold- 
hunter,  Blatch.  &  H.  300;  The  Ethel, 
5  Ben.  154. 

*  The  Antoinettu  C,  5  Ben.  564  ; 
The  Freedom,  L.  R.,  3  P.  C.  594  ;  see 
Daggett  V.  Shaw,  3  Mo.  189. 

^  Reeves  v.  Waterman,  2  Spears, 
197. 

If*  The  Ethel,  5  Ben.  154. 

"  The  Mohawk,  8  Wall.  153  ;  The 
Edwin,  1  Sprague,  477  ;  Bulkley  v. 
Naurakeag,  etc.,  Co.,  S.  C.  24  How. 
386  ;  contra,  Adams  Ex.  Co.  v.  Fen- 
drich,  38  Ind.  150. 

^^  Schieffelin  v.  Harvey,  6  Johns. 
(N.  Y.)  170. 

^^  The  Gold  Hunter,  Blatch.  &  H. 
300. 

''*  Opinion  of  Sharkey,  C.  J.,  in  Gil- 
more  V.  Carman,  1  S.  &  M.  (]\Iiss.) 
279. 

209 


§  273.]  BILLS    OF    LADING.  [CIIAP,  XVIII. 

§  273.  Another  class  of  causes  which  have  also  heen  held  to 
he  without  the  exception,  are  those  in  which  the  loss  is  in  whole 
or  in  part  the  result  of  the  negligence  of  the  carrier.  Such  are 
unskilfuhiess  of  the  pilot,'  lack  of  proper  ventilation,^  bad 
stowage,^  damage  from  water  made  possible  by  bad  stowage,* 
or  loss  of  the  goods  by  being  washed  overboard  when  stowed 
on  deck  without  the  consent  of  the  shippers,^  a  leak  not  shown 
to  have  been  caused  by  the  irresistible  action  of  the  elements,^ 
a  collision  occasioned  by  negligence  of  the  vessel's  crew,^  the 
dampness  or  sweating  of  the  hold  of  a  vessel  when  shown  to 
be  the  ordinary  accompaniment  of  a  voyage  from  southern  to 
northern  ports  and  to  result  not  from  tempestuous  weather, 
but  from  occult  atmospheric  causes  ;^  the  insufficiency  or  unsea- 
worthiness of  the  vessel  f  the  ordinary  rolling  of  a  vessel  in  a 
cross  sea,  being  an  ordinary  incident  of  a  voyage  ;'"  the  striking 
on  a  rock,  the  presence  of  which  is  indicated  by  a  buoy  ;"  the 
beaching  of  a  ship  within  the  tideway  so  that  she  might  be  re- 
paired, by  which  act  she  is  bilged  and  damaged.'^  Low  water 
in  a  river  rendering  it  unnavigable,  it  has  been  frequently  held 
is  not  to  be  classed  among  the  dangers  of  the  river,  which  ab- 
solve a  carrier  from  his  obligation  ;"  or,  as  the  same  principle  has 
been  rather  tersely  put  in  a  Minnesota  case,  the  phrase  "  dangers 
of  navigation"  does  not  mean  the  want  of  navigation.'* 

^  Harvey  v.  Pike,  N.  C.  Tern.  Rep.  Gen.  Iron  Screw  Colliery  Co.,  o3  L. 

82;   S.  C.  J.  Am.  Dec.  698.  J.  Exch.  269  ;   S.  C,  3   11.  &  C.  284. 

2  The  Freedom,  L.  R.,  3  P.  C.  594.         »  Baxter   w.    Leland,    Abb.    Adm. 

3  The  Rebecca,  1  Ware  188;  The  348;  but  see  Rich  y.  Lambert,  12  How. 
Newark,   1   Blatch.   203  ;   The  Casco,  347. 

Davies,  184.  9  The  Northern  Belle,  1  Biss.  529. 

*  Richards  r.  Hansen,   1  Fed.  Rep.  '"  The  Reeside,  2  Sumner,  567. 

54  ;  Fleming  v.  Marine  Ins.  Co.,  3  W.  -^  Ferguson  v.  Brent,  12  Md.  9. 

&  S.  (Pa.)  144.  12  Thompson  v.  Whitmore,  3  Taunt. 

^  Dorsey    v..     Smith,    4    La.     211;  127. 

The    Rebecca,     1     Ware    188;    The  '^  Mahon  v.  The  Olive  Branch,   18 

Casco,   Davies,  184;  The  Newark,   2  La.  Ann.  Rep.  107;   Hatchett  v.  The 

Blatchf.  203.     .  Compromise,  12  ib.  783;  Broadwell  y. 

«  The  Emma  Johnson,   1  Sprague,  Butler,    1  Newb.   171;    S.  C,  6  Mc- 

527;  The    Compta,    4   Sawyer,   375;  Lean,  296;   Cox  v.  Peterson,  38   Ala. 

The  Spring,  29  Fed.  Rep.  397.  608 ;  Transportation  Co.  v.  Downer, 

'  Grille.  Gen.  Iron  Screw  Colliery  11  Wall.  129. 

Co.,    1  L.  R.,  C.  P.    600;  Lloyd  v.  "  Cowley  u.  Davidson,  13  Minn.  92. 

210 


CHAP.  XVIIT.]  EXCEPTIONS.  [§  275. 

§  274.  "  Loss  on  the  lakes  (or  rivers),"  it  has  heen  said,  does 
not  include  loss  of  goods  in  a  wharf  boat.*  Loss  by  lightning, 
though  an  act  of  God,  is  not  a  peril  of  the  sea,^  nor  is  being 
fired  at  by  the  vessel  of  the  enemy,  though  this  is  clearly  within 
the  common  law  exception,  the  public  enemy.^  These  distinc- 
tions are,  however,  of  little  practical  value,  since  the  expression 
of  such  phrases  as  that  under  consideration  is  not  the  exclusion 
of  the  implied  common  law  exceptions. 

If  a  vessel  be  driven  by  stress  of  Aveather  upon  an  enemy's 
coast  and -be  there  captured,  it  is  not  a  "  peril  of  the  seas."* 
So,  where  the  master  of  a  vessel  was  unwilling  to  put  to  sea 
through  fear  of  capture  by  an  enemj^  war  having  been  declared 
against  the  nation  under  whose  flag  he  was  sailing  while  he 
was  at  an  intermediate  port,  this  was  not  within  the  exception,^ 
and  in  Spence  v.  Chadwick,^  where  it  was  shown  that  goods  in 
transit  had  been  confiscated  as  contraband,  at  Cadiz,  under  the 
laws  of  Spain  ;  this  was  said  to  be  not  within  the  meaning  of 
the  phrase  and  in  as  much  as  the  plea  did  not  set  up  that  the 
shipper  knew  that  the  goods  were  contraband  or  allege  any 
wrongful  act  on  his  part,  the  carrier  was  held  liable. 

§  275.  The  question  of  the  existence  of  negligence  is  fre- 
quently of  great  importance  in  determining  whether  the  excep- 
tion will  serve  as  a  release  from  liability.  "  If  a  ship  perish 
by  striking  on  a  rock  or  shallow"  (to  quote  from  Abbot  on 
Shipping),^  "  the  circumstances  under  which  the  event  takes 
place  must  be  ascertained  in  orde;-  to  find  out  whether  it 
happened  by  a  peril  of  the  sea  or  the  fault  of  the  master." 
Where  it  is  clear  that  by  the  exercise  of  discretion  and  fore- 
sight the  loss  might  have  been  prevented,  it  is  idle  to  show 
that  natural  causes,  which  otherwise  would  constitute  a  peril 

'•   St.    Louis,    etc.,    R.     R.    Co.    v.  278;   Hahn  v.  Corhett,   2  Bing.   211. 

Smiick,  49  (Ind.)  302.  The  rule  in  the  United   States  would 

2  Hong  Kong,  etc.,  Banking  Corp.  seem  to  be  otherwise.     United  States 

V.  Baker,  7  Bomb.  H.  C.  Rep.  204.  v.  Hall,  2  Wash.  C.  C.  366. 

»  Bever   v.    Tomlinson,    Abbot     on  ^  'jbe  Patria,  L.  R.,  3  Adm.  436." 

Shipping,  p.  290  (10th  ed.)  ;  CuUen  «  10  Q.  B.  517;   S.  C,  16  L.J.  Q. 

V.  Butler,  1   Stark.  138;   S.  C,  5  M.  B.  313;   11  Jur.  872. 

&  S.  461.  '  Page  388,  5th  Am.  ed.  ;  see  cases 

*  Green  v.  Emslie  Peaks,  N.  P.  C.  cited  in  notes. 

211 


§  276.]  BILLS    OF   LADINa.  [CHAP.  XVIII. 

of  the  seas,  have  contributed  to  the  production   of  the  dis- 
aster.^ 

In  an  early  case^  the  law  was  thus  laid  down  :  "  If  the  situa- 
tion of  the  rock  or  shoal  be  generally  known  and  the  ship  be 
not  forced  upon  it  by  adverse  winds  or  tempests,  the  loss  is  to 
be  imputed  to  the  fault  of  the  master."  So  where  a  boat  upon 
the  Ohio  river  ran  upon  a  stone  and  knocked  a  hole  in  her  hull, 
it  was  hekl,  that  in  order  to  bring  the  case  within  the  excep- 
tion "  danjrers  of  the  river,"  it  was  incumbent  on  the  carrier  to 
show  that  due  diligence  and  proper  skill  had  been  used  to  avoid 
the  accident.3  The  question  of  the  existence  of  negligence  is, 
however,  always  for  the  jury.* 

§  276.  It  is  not,  however,  sufficient  to  show  merely  the  exist- 
ence of  a  peril  of  the  sea.  It  must  be  shown  that  the  sea  peril 
not  only  existed  and  that  it  was  the  cause  of  loss,  but  that  it 
was  a  necessary  cause  of  loss.** 

Thus  where  a  master  attempted  to  enter  a  port  in  a  thick 
fog  and  wrecked  his  vessel,  there  being  no  necessity  for  his 
making  the  attempt  at  that  time,  this  was  not  a  peril  of  the 
seas.^  So,  also,  where  a  vessel  about  to  sink  from  the  effects  of 
bad  weather  puts  into  an  intermediate  port  and  the  master 
sells  the  ship  and  cargo  without  a  necessity  for  so  doing,  this 
is  not  within  the  exception.^  Where  there  was  doubt  as  to 
whether  a  collision  was  attributable  to  the  master's  neglect  or 

1  Spenoe  v.  Daggett,  2  Vt.  92 ;  son,  7  Yerg.  (Tenn.)  340 ;  The  Keo- 
"Williams  v.  Branson,  1  Murph.'  (N.  kuk,  1  Biss.  522  ;  Van  Horn  v.  Tay- 
C.)  417  ;  Jones  v.  Pitcher,  3  St.  &  P.  lor,  2  La.  Ann.  Rep.  587  ;  The  Ocean 
(Ala.)  135;  Bazin  i'.  Steamship  Co.,  Wave,  3  Biss.  317;  Gordon  v.  Bu- 
3  Wall.,  Jr.  229.  chanan,  5  Yerg.  (Tenn.)  71. 

2  Williams  v.  Branson,  1  Murph.  ■*  Gordon  v.  Buchanan,  5  Yerg. 
N.  C.  417.  (Tenn.)  71  ;  March  v.  Blyth,   1  N.  & 

3  Whitesides  v.  Russell,  8  W.  &  S.  M.  170;  McClure  v.  Hammond,  1 
(Pa.)  44.  It  would  seem,  from  some  Bay  99  ;  Humphreys  v.  Reed,  6 
of  the  cases,  that  negligence  is  to  be  Whart.  (Pa.)  435. 

imputed  where   the   carrier   runs    his  ^  The  Compta,  4  Sawy.  375  ;  Speyer 

vessel  against  a  known  rock.     Collier  v.  The  Mary  Belle  Roberts,  2  Sawy. 

V.  Valentine,  11  Mo.  299;  Fergusson  1;  The  Costa  Rica,  3  Sawyer,  538; 

V.   Brent.    12    Md.    9;     Williams    v.  Cannan  u.  Meaburn,  1  Bing. -243. 

Grant,   1  Conn.  487  ;  Fletcher  v.  In-  ^  -phe  Costa  Rica,  3  Sawyer,  538. 

glis,  2  B.  &  Aid.  315;   Tumey  v.  Wil-  ^  Cannan  v.  Meaburn,  1  Bing.  243. 
212 


CHAP.  XVril.]  EXCEPTIONS.  [§  278. 

to  causes  beyond  his  control,  the  loss  was  held  to  fall  within 
the  excepted  perils.^ 

§  277.  Where  the  bill  of  lading  declares  that  the  goods  are 
to  be  stowed  on  deck  and  excepts  "  perils  of  the  sea,"  the  cir- 
cumstances of  the  case  are  to  be  carefully  considered.  Says  Mr. 
Justice  Curtis  in  Lawrence  v.  Minturn  •?  "  The  question  is  not 
what  under  other  circumstances,  would  be  deemed  a  peril  of 
the  sea,  but  what  is  to  be  deemed  such  when  operating  on  this 
vessel  with  this  deck  load."  In  this  case  the  jettison  of  the 
deck  load  was  held  to  be  justifiable. 

§  278.  Where  the  goods  have  been  damaged  by  water,  it  is 
the  duty  of  the  carrier  to  prevent  further  injury ,3  if  necessary  by 
opening  the  packages  and  drying  the  goods,^and  where  through 
an  unquestioned  sea  peril,  bilge  water  slowl}-  entered  the  cabin 
where  was  a  box  of  books  and  the  carrier  had  ample  time  to 
remove  them  to  a  place  of  safety,  it  was  held  that  he  could  not 
take  shelter  from  his  liability  to  answer  for  his  negligence  in 
not  preserving  the  goods  under  this  exception.^  In  general  it 
may  be  said  that  the  rules  in  the  cases  of  the  act  of  God  and 
negligence  concurring  as  causes  of  loss,  apply  with  equal  force 
to  the  exception,  peril  of  the  sea,  when  modified  by  the  negli- 
gence of  the  carrier. 

1  Buller  V.  Fisher,  Abbot  on  Ship-  "  Ciiouteaux    v.  Leach,   18   Pa.   St. 

pintl,  p.  289,  tenth  Am.  ed.  224. 

M  7  How.  100,  112.    See  also  Hand  ^  Sfy^^^^Q.^^.    Company    v.    Bason, 

V.  Baynes,  4  Whart.  (Pa.)  204.  Harp.   (S.  C.)  262. 

8  Bird  V.  Cromwell,  1  Mo.  58. 

213 


§  279.] 


BILLS   OF   LADING. 


[chap.  XIX. 


CHAPTER  XIX. 


EXCEPTIONS  Continued— LOSS  OF  PERISHABLE  GOODS— LOSS 
BY  INHERENT  DEFECT— BY  DETERIORATION— BY  DECAY. 


Carriers  are  not  liable  for  loss  which  is 
the  result  of  the  "  inherent  nature  of 
the  goods"  shipped,  §  279. 

"Perishable  goods,"  §  280. 

"  Inherent  defect — deterioration — de- 
cay," §§281,  282. 

Exception  does  not  reliere  from  negli- 
gence, §§  283,  284. 


Carrier's  duty  Is  measured  by  the  cir- 
cumstances of  each  case,  §  285. 

Master's  duty  to  open  packages,  §  286. 

Master's  duty  in  regard  to  the  sale  of 
injured  goods,  §  287. 

Master  should  communicate  ■with  the 
owners,  §  288. 

Right  of  a  carrier  by  land  to  sell  per- 
ishable goods,  §  289. 


§  279.  "Injury  to  perishable  goods,"  "loss  by  inherent  de- 
fect," "loss  by  deterioration,"  "loss  by  decay"  and  similar 
expressions  usually  found  among  the  printed  exceptions  of  the 
bill  of  lading  are  not  to  be  considered  as  limiting  in  a  material 
degree  the  carrier's  original  liability. 

At  the  common  law  the  carrier  could  not  be  held  for  such 
loss  as  was  the  result  of  the  nature,  vice,  or  defect  inherent  in 
the  goods  carried  and  in  no  sense  the  result  of  his  own  negli- 
gence. Says  Mr.  Justice  Story  in  his  treatise  on  Bailments: 
"Although  the  rule  is  laid  down  in  general  terms  at  the  com- 
mon law  that  the  carrier  is  responsible  for  all  losses  not  occa- 
sioned by  the  act  of  God,  or  of  the  king's  enemies ;  yet  it  is  to 
be  understood  in  all  cases  that  the  rule  does  not  cover  any  losses 
not  within  the  exception,  which  arise  from  the  ordinary  wear 
and  tear  and  chafing  of  the  goods  in  the  course  of  their  trans- 
portation, or  from  their  ordinary  loss,  deterioration  in  quantity 
or  quality  in  the  course  of  the  voyage,  or  from  their  inherent 

natural  infirmity  and  tendency  to   damage Thus,  for 

example,  the  carrier  is  not  liable  for  any  loss  or  damage  from 
the  ordinary  decay  or  deterioration  of  oranges  or  other  fruits 
in  the  course  of  the  voyage  from  their  inherent  infirmity  or 
214 


CHAP.  XIX.]  EXCEPTIONS.  [§  282. 

nature,  or  from  the  ordinary  diminution  or  evaporation  of 
liquids,  or  the  ordinary  leakage  from  the  casks  in  which  the 
liquors  ai'e  put,  in  the  course  of  the  voyage,  or  from  the  spon- 
taneous combustion  of  goods  or  their  tendency  to  effervesce."^ 

§  280.  Of  the  exceptions  under  consideration,  the  phrase 
"perishable  goods"  is  perhaps  the  least  broad  in  its  application. 
In  an  Illinois  case,^  perishable  property  is  defined  as  "  that  which 
from  its  nature  decays  in  a  short  space  of  time,  without  refer- 
ence to  the  care  it  receives."  "  Of  that  character,"  it  was  said, 
"are  most  varieties  of  fruits,  some  kinds  of  liquors,  and 
numerous  vegetable  productions."  Merchantable  corn  was  held 
not  to  be  within  the  exception. 

§  281.  The  other  phrases,  however,  are-  more  liberally  con- 
strued, as  indeed  is  the  common  law  rule.  Thus,  a  cargo  of 
hemp  could  not,  under  the  most  liberal  construction  of  the 
phrase,  be  termed  perishable  property,  yet  where  the  destruc- 
tion of  the  hemp  by  fire  was  shown  to  have  been  caused  by  self- 
ignition,  the  carrier  was  held  to  be  discharged  at  common  law.^ 
So  where  potatoes  were  shipped  at  Hamburg,  to  be  delivered  in 
New  York  and  the  evidence  showed  that  they  were  in  bad  con- 
dition wben  shipped, the  vessel  was  not  held  liable  for  their  loss.* 
Where  the  plaintiff  loaded  heavy  machinery  upon  a  platform- 
car  and  blocked  its  wheels  with  insufficient  blocking,  insecurely 
nailed,  by  reason  whereof  the  machinery,  while  being  trans- 
ported, broke  from  its  fastening  and  was  injured,  without  fault 
of  the  defendant  in  the  running  of  the  train  or  the  maintenance 
of  the  track,  it  was  held  that  the  defendants  were  not  liable, 
even  though  their  servants  saw  the  fastening  and  noticed  their 
insufficiency  before  the  injury  was  done.® 

§  282.  This  class  of  exceptions  will  include  ullage,  or  the 
quantity  of  liquid  a  cask,  on  being  gauged,  lacks  of  being  full.^ 
Hence,  in  Warden  v.  Green,'  where  the  action  was  for  the  value 
of  a  large  quantity  of  molasses  lost  because  of  the  expansion  of 

1  Story  on  Bailments,  §  492,  a.  =  Ross  v.  R.  R.  Co.,  49  Yt.  364. 

2  Illinois,    etc.,  R.   R.    Co.  v.    Mc-         «  Antrell  on  Carriers,  §  211. 
Clellan,  54  111.  58.  ^  6  Watts  (Pa.),  424.     The  loss  is 

^  Boyd  V.  Dubois,  3  Camp.  133.  here  incorrectly  attributed  to  the  act 

*  The  Ship  Howard  v.  Wissman,  18     of  God. 
How.  231. 

215 


R  284.]  BILLS   OF    LADING.  [CHAP.  XIX. 

the  2;oods  caused  by  the  warm  weather  and  because  of  the 
insufficiency  of  the  casks,  the  carrier  was  discharged.  So  in 
jS^elson  V.  Woodruff,^  where  the  goods  were  lard  in  casks  and 
the  loss  was  occasioned  by  the  melting  of  the  lard  on  a  voyage 
to  a  Southern  port,  the  loss  was  held  to  be  within  the  common 
law  exceptions.  Where  the  loss  has  been  occasioned  by  secret 
defects  in  the  casks,  boxes,  or  packages  containing  the  goods, 
the  carrier  is  not  liable.^ 

§  283.  The  exoneration  of  the  exceptions  under  consideration 
does  not,  however,  extend  to  a  loss  to  which  the  carrier's 
own  negligent  act,  or  misconduct  has  contributed.  The  decay 
of  fruit  or  grain,  though  ordinarily  within  the  exceptions,^ 
will  not  excuse  the  carrier  if  he  has  failed  to  secure  proper  ven-. 
tilation  for  the  goods*  and  the  loss  of  meat  will  not  be  within 
the  relief  of  the  exception  "  decay"  in  the  event  of  the  fail- 
ure of  the  carrier  to  provide  sufficient  ice  to  keep  it  during 
the  voyage.'  In  Lewis  v.  The  Ship  Success,^  where  a  ship, 
loaded  to  an  average  depth  with  grain  for  New  Orleans,  was 
delayed  sixty-seven  days  by  an  unusually  low  stage  of  the 
water  of  the  Mississippi  River  and  on  arrival  the  grain  was 
found  much  damaged,  it  was  held  that  though  the  general 
principle  was,  where  the  damage  proceeded  from  the  nature  of 
the  property  whether  in  any  situation  whatever,  or  only  in  the 
confinement  of  the  ship,  that  the  ship-owners  were  liable,  that 
this  did  not  apply  where  there  had  been  want  of  due  diligence 
in-  ventilating  and  caring  for  the  grain  during  the  detention. 

§  284.  In  "  The  Ship  Invincible,"^  wine  had  been  shipped 
from  ISTew  York  to  San  Francisco  and  by  reason  of  the  omis- 
sion of  the  carrier's  servants  to  provide  proper  and  necessary 
ventilation,  had  been,  in  part  at  least,  injured  on  the  journey. 
The  languaffe  of  the  Court  was  as  follows :    "  I  think  it  clear 

'  1  Black,  156.  *  Davidson    v:  Gwynne,    12    East. 

2  Hudson  V.  Baxendale,  2  Hurl  &  N.  381  ;  The  America,  8  Ben.  491  ;  The 
575;     Nelson    v.    Woodruff,    supra;     CoWenherg,  supra. 

Warden  v.  Green,  ib.  *  Sherman  v.   Inman  S.  S.  Co.,  26 

3  Story  on  Bailments,  §  492  a  ;    The  Hun  (N.  Y.),  107. 
Brig  CoUenberg,  1  Black,  170;  Acatos  ^  18  La.  Ann.  Rep.  1. 
V.  Burns,  47  L.J.  (N.  S.)  Q.  B.  566;  ^  3  Sawyer,  176. 
The  Norway,  12  L.  T.  (N.  S.)  57. 

216 


CHAP.  XIX,]  EXCEPTIONS.  [§  285. 

that  in  this  case  it  was  the  obvious  duty  of  the  master  to  use 
the  efficacious  means  at  his  disposal  to  prevent  or  check  the 
damage  which  the  goods  might  sustain  from  natural  causes 
and  that  to  relieve  him  from  that  duty  he  must  establish  by  a 
preponderance  of  proof  that  the  shipper  dispensed  with  its 
performance.  This  he  has,  in  my  view  of  the  evidence,  failed 
to  do." 

An  interesting  case  is  that  of  Hutchinson  v.  Guion.^  The 
declaration  was  against  the  carrier  for  the  loss  of  a  quantitj^  of 
salt  cake,  through  alleged  negligence  in  stowage.  The  plea  set 
forth  that  salt  cake  is  a  corrosive  substance ;  that  the  goods  in 
question  were  delivered  to  the  defendant  in  bulk,  whereas  they 
should  have  been  packed  in  cases  ;  that  the  plaintiffs  induced  the 
defendants  to  believe  that  the  goods  were  properly  packed;  that 
the  defendants,  ignorant  of  the  nature  of  salt  cake,  had  stowed  it 
in  contact  with  certain  casks  containing  salt  provisions  ;  that  the 
salt  cakes  had  rotted  and  destroyed  these  casks  and  that  the 
brine  therefrom  had  damaged  the  salt  cake.  The  replication 
set  up  that  salt  cake  is  an  article  of  merchandise  well  known 
in  trade  and  commerce  and  that  the  defendants  well  knew,  or 
should  have  known,  its  nature.  The  plea  was  held  to  be  good 
and  the  replication  insufficient.  It  is  not  enough  that  the 
carrier  take  reasonable  care  of  the  goods,  he  must  employ  active 
measures  to  secure  their  safety.  Mere  passive  oversight  is  not 
sufficient. 

§  285.  To  determine  what  is  to  be  expected  of  the  carrier, 
respect  must  be  had  to  the  character  of  the  goods  and  the  cir- 
cumstances of  each  case.  If  the  goods  have  become  wetted  and 
are  liable  to  be  injured  thereby,  he  should,  if  possible,  unpack 
and  dry  them.^  If  a  cargo  of  hides  is  liable  to  be  destroyed  by 
worms,  he  should  have  the  skins  beaten  and  ventilated.^  If  a 
horse  is  left  in  the  carrier's  custody,  he  is  bound  to  feed  it, 
though  he  may  recover  from  the  owner  the  cost  of  its  keep.^ 

Referring  to  the  duties  of  the  master  of  a  ship,  Mr.  Parsons, 

1  5  C.  B.  N.  S.  149.  3  The   Bark    Gentleman,    Olcotts's 

2  Chouteaux  v.    Leach,    18  Pa.   St.     Adm.    110;    S.   C,    1    Blatoh.    196; 
224;  The  Niagara  v.  Coi-des,  2^  How.     Rogers  v.  Murray,  3  Bosw.  357. 

7;   Blocker  v.  AVhittenburg,    12    La.         ■•  Great    Northern    R.    W.    Co.    v, 
Ann.  Rep.  410.  .Swaffield  L.  R.,  9  Exch.  132,  136. 

217 


§  287.]  BILLS   OF   LADING.  [CHAP.  XIX. 

in  his  treatise  on  Shipping,  says:  "  Generally  and  in  the  exer- 
cise of  his  duties  as  master,  he  is  a  stranger  to  the  cargo  be- 
tween the  lading  and  the  unlading.  But  exigencies  and  emer- 
gencies may  arise,  in  which  the  master  becomes,  of  necessity, 
supercargo  or  consignee,  or  to  speak  more  correctly,  is  clothed 
with  whatever  agency  or  authority  may  be  needed  to  protect 
the  property  and  interests  intrusted  to  him."^  In  other  words, 
the  character  of  agent  for  the  shipper  is  thrown  upon  him  by  a 
policy  of  law,^ 

§  286.  In  the  line  of  this  principle,  it  has  been  decided  that 
the  master  may  and  must  open  packages  containing  goods  liable 
to  be  lost  -,3  but  he  is  not  bound  either  to  repair  the  goods  or 
to  delay  the  voyage  for  the  sake  of  saving  them.*  In  extreme 
cases  he  may  and  must  sell  the  goods,  as  where  they  have  been 
so  far  damaged  that  they  will  be  lost  or  their  value  materially 
diminished  unless  he  does  so.**  This  rule  applies,  however,, 
only  where  it  is  impossible  to  transship  the  goods  and  only 
where  it  is  impossible  to  communicate  with  and  obtain  instruc- 
tions from  the  owner. 

§  287.  In  Acatos  v.  Burns,^  an  action  was  brought  against  a 
ship-owner  for  the  non-delivery  of  a  cargo  of  maize,  which  had 
become  heated  and  had  been  sold  by  the  defendant  at  an  inter- 
mediate port.  The  jury  found  that  the  cargo  had  been  dam- 
ao-ed  bv  its  own  inherent  vice;  that  it  had  been  impossible  to 
carry  it  to  the  port  of  destination ;  th4t  the  sale  was  what  a  pru- 
dent man  would  have  done  under  the  circumstances,  but  that 
there  had  been  no  such  urgent  necessity  for  the  sale  as  to  give 
no  time  or  opportunity  to  give  notice  to  the  plaintiff,  the  owner 
of  the  cargo.  It  was  held  that  on  these  findings  the  defendant 
had  no  right  to  sell  the  goods  without  the  plaintiff's  assent  and 
that  the  action  would  lie. 

'  Parsons  on  Shipping,  II.,  p.  22.  Clayton,    12  Ga.  5G4,  the  carrier  was 

2  The  Gratitudine,  3  Rob.  Ad.  240,  allowed  to  recover  money  spent  in  fit- 

260.  ting  for  market  the  goods  which  had 

"  Bird  V.  Cromwell,  1  Mo.  58  ;  Chou-  been  injured  on  the  voyage. 

teaux  V.  Leach,  18  Pa.  St.  224.  *  Flierboom  v.  Chapman,   13  M.  & 

*  The  Lynx  v.  King,  12  Mo.   272;  AV.   230;   Acatos  v.    Bm-ns,   47  L.  J. 

Soule  V.  Rodoeanachi,  1  Newb.  Adm.  (N.  S.)  Q.  B,  566;  Notara  v.  Hen- 

504;  Notara  v.  Henderson,  L.  R.,  5  derson,  L.  R.,  5  Q.  B.  346. 

Q.  B.  346.     In  the  case  of  Brown  v.  ^  Supra. 
218 


CHAP.  XIX.]  excep'tions.  [§  289. 

§  288.  It  is  the  master's  first  duty,  where  practicable,  to  com- 
municate with  the  owners.  He  can  be  the  agent  for  them  only 
ex  necessitate  rei ;^  or,  as  the  law  is  put  in  a  recent  English  case,^ 
to  justify  the  carrier  in  selling  the  goods  he  must  show  first  a 
necessity  for  the  sale ;  second,  his  inability  to  communicate 
with  the  owners.  In  this  case  wool  was  shipped  from  Rock- 
hampton,  in  Australia,  for  England.  When  but  a  short  distance 
from  the  port  of  departure  the  vessel  was  wrecked.  The  wool 
was  saved,  but  in  a  heated  condition.  Means  were  not  at  hand 
to  stop  the  fermentation  of  the  goods  and  they  were  sold. 
There  was  but  little  question  as  to  the  advisability  of  the  sale ; 
the  question  being  rather  as  to  the  necessity  of  informing  the 
owners.  The  court  said:  "There  can  be  no  doubt  that  the 
master  is  bound  to  employ  .the  telegraph  as  a  means  of  com- 
munication where  it  can  be  usefully  done,  but  in  this  case  the 
state  of  the  particular  telegraph,,  the  way  it  was  managed  and 
how  far  explanatory  messages  could  be  transmitted  by  it,  hav- 
ing regard  for  the  time  and  circumstances  under  which  the 
mastei'  was  placed,  were  proper  subjects  to  be  considered  by  the 
jury,  together  with  the  other  facts,  in  determining  the  practi- 
cability of  communication."^ 

§  289.  The  right  to  sell  perishable  goods  to  avoid  their  total 
destruction,  seems  to  apply  to  carriers  by  land  no  less  than  to 
carriers  by  sea.  In  American  Express  Company  v.  Smith,*  a 
railroad  company  had  been  carrying  a  consignment  of  peaches 
and  travel  over  the  company's  line  being  of  necessity  and  with- 
out fault  interrupted,  it  was  found  impossible  to  forward  them. 
They  could  not  be  transshipped  and  were  sold  for  what  they 
would  bring.  The  carrier  was  not  liable  for  the  loss  to  the 
shippers. 

'  The  Hamburg,  33  L.  J.  (N.  S.)  »  The  Lizzie,  L.  K.,  2  Adm.  254  ; 
Adm.  116;  The  Norway,  12  L.  J.  Droege  v.  Suart.,  L.  R.,  2  P.  C.  505. 
(N.  S.)  57.  *  33  O.  St.  511. 

'^  Australasian,    etc.,    Nav.    Co.   v. 
Morse,  L.  R.,  4  P.  C.  222. 

219 


291.] 


BILLS   OF   LADING. 


[chap.  XX. 


CHAPTER  XX. 

EXCEPTIONS    Continued— PIRATES    AND    ROVERS— PUBLIC 
ENEMY— RATS  AND  VERMIN. 


Loss  by  "pirates,"  generally,  §  290. 

What  are  losses  by  pirates,  §  291. 

Who  are  "public  enemies,"  §§292, 
293. 

What  are  not  losses  by  the  public 
enemy,  §  294. 

The  exception  does  not  relieve  the 
carrier  from  tlie  result  of  his  negli- 
gence, §  295. 


The  loss  must  be  the  proximate  result 

of  the  negligence,  §  296. 
Effect  of  declaration  of  war  upon  the 

carrier's  obligation,  §  297. 
Loss  by  "rats"  is  not  a  peril  of  the  sea, 

§  298. 
Loss  by  "  vermin"  is  not  a  peril  of  the 

sea,  §  299. 


§  290.  "  Loss  by  pirates"  has  been  held  to  fall  under  both  the 
exception  "perils  of  the. seas"  and  "the  king's  enemies."  It  is, 
nevertheless,  sometimes  separately  expressed  in  bills  of  lading. 
It  is,  however,  to  be  noted  that  capture  by  pirates  difters  from 
capture  by  the  public  enemy  in  this,  that  it  does  not  divest  the 
title  of  the  owner  to  the  goods.  The  English  statute  providing 
for  restitution  of  property  if  retaken  by  the  original  owner  is  of 
very  early  date.^  A  definition  of  the  crime  of  piracy  is  not 
within  the  purpose  of  this  treatise  and,  indeed,  would  not  be 
found  to  be  exactly  coincident  with  the  meaning  of  the  excep- 
tion under  consideration.^  Thus,  robbery  on  a  river  where  the 
tide  ebbs  and  flows  is  not  piracy  within  the  terms  of  a  bill  of 
lading,  even  though  it  be  punishable  as  such  under  the  laws  of 
the  United  States.^ 

§  291.    The  following  cases  have  been  held  to  come  under 


1  27  Ed.  III.  St.  2,  c.  13,  Y.  B.,  2  vol.  II.  c.  8,  §§  1,  2,  and  notes  ;  U. 
Rich.  3,  2;  see  Atkinson  on  Shipping,  S.  v.  Smith,  5  Wheat.  153;  U.  S.  v. 
p-  118.  Palmer,  3  Wheat.  610;  The  Magellan 

2  Angell  on  Carriers,  note  to  §  200  Pirates,  25  Eng.  Law  &  Eq.  Rep. 
(5th  ed.)  ;  Abbott  on  Shipping,  p.  27,  595. 

Story's   Notes;    Russell    on   Crimes,         ^  The  Belfast  i>.  Boon,  41  Ala.  50. 
220 


CHAP.  XX.]  EXCEPTIONS.  [§  292. 

the  exceptionless  by  pirates:  (1)  Where  a  vessel  was  taken 
out  of  her  course  by  her  crew  and  the  goods  were  seized 
and  part  of  them  sold.^  (2)  Where  emigrant  coolie  passengers 
murdered  the  captain  and  part  of  the  crew,  took  possession  of 
the  vessel  and  ran  her  ashore,  whereby  the  goods  were  de- 
stroyed.2  (3)  Where  a  ship  laden  with  a  cargo  of  corn  was 
forced  by  stress  of  weather  into-  Elly  harbor,  the  people  came 
on  board,  took  the  control  of  the  ship  from  the  captain,  drove 
the  vessel  aground  and  would  not  leave  her  until  they  had 
compelled  the  captain  to  sell  the  corn  to  them  at  a  very  low 
price.^ 

§  292.  It  has  been  seen  that  carriers  are  not  at  common  law 
liable  for  loss  or  damage  caused  by  the  "  public  enemy."  It  is, 
however,  customary  and,  in  order  to  avoid  dispute,  advisable, 
that  it  should  be  made  one  of  the  expressed  exemptions  from 
lial)ility  written  in  the  bill  of  lading.  What  are  losses  by  the 
public  enemy?  The  term  "  the  public  enemy,"  or  its  equiva- 
lents, "  the  king's  enemies,"  "  the  queen's  enemies,"  "  the  enemies 
of  the  state,"  and  similar  expressions,  is  to  be  defined  as  includ- 
ing all  those  with  whom  the  State  is  at  open  war.*  It  has  been 
repeatedly  said  that  pirates  are  within  this  definition,  inasmuch 
as  they  are  universally  treated  as  the  enemies  of  all  mankind.^ 
Privateers  are  likewise  and  for  evident  reasons,  within  the 
exception.^  It  has  been  also  held  by  the  Federal  Supreme  Court 
that  hostile  tribes  of  Indians  may  be  so  regarded.*^  The  excep- 
tion, moreover,  includes  not  only  the  enemies  of  the  country  in 

'  Dixon  V.  Reed,  5  B.  &  Aid.  597.  that  the   loss    was    primarily   due    to 

2  Palmer   v.   Naylor,   23  L.  J.  Ex.  piracy,  and  was  within  the  exception. 

323.  *  Story  on  Bailments,  §  526  ;  Angell 

*  Nesbitt    r.   Lushington,   4  T.    R.  on  Carriers,  §  200. 

783.     In  both   of  the   two  cases   last         ^  Story  on  Bailments,  §  526  ;  Gage 

named  the  question  came  up,  to  which  v.  Tirrell,  9  Allen  (Mass.),  299  ;  Pick- 

■   of  two  causes  of  loss, — dangers  of  the  ering   v.    Barkley,     Styles,     132    (24 

sea  and  piracy,  both  of  which  unques-  Car.)  ;    Barton  v.  Wolleford,    Comb. 

tionably  contributed  to  the  destruction  56  (3  Jac.  II.). 

of  the  goods, — was  the  loss  to  be  at-        ^  Schouler  on  Bailments,  §  408. 

tributed  and  in  both  cases,  by  apply-         ^  Holladay    v.    Kennard,    12  Wall. 

ing    the    doctrine   of    the    proximate  254. 

cause  already  considered,  it  was  found 

221 


§  294.]  BILLS    OF   LADING.  [CHAP.  XX. 

which  the  Court  is  situated,  but  also  the  enemies  of  the 
sovereign  or  State  of  the  carrier.'  Thus,  where  a  Mecklenburg 
ship  loaded  at  Odessa  to  call  at  Cork  or  Falmouth  for  orders, 
proceeded  to  Falmouth  and  was  there  ordered  to  Limerick  to 
discharge ;  but  the  master  was  prevented  from  doing  so  by  the 
act  of  the  enemies  of  his  sovereign  the  Duke  of  Mecklenburg- 
Schwerin,  it  was  held  that  sudi  an  event  was  contemplated  by 
the  expression,  "the  king's  enemies."^ 

§  293.  To  follow  the  definition  yet  farther.  "When  and 
with  whom  is  the  State  at  open  war?  The  Constitution  of 
the  United  States  gives  the  authority  to  declare  war  and  deal 
with  the  public  enemies  of  the  United  States  to  the  executive 
and  legislative  branches  of  the  Federal  Government.  The 
Courts  of  the  Union  must  view  belligerents  in  the  same  way. 
With  abundant  reason,  therefore,  the  Confederate  insurgents, 
with  whom  the  Federal  Government  waged  war,  have  been 
called  "  public  enemies"  and  carriers  have  been  freed  from 
liability  for  loss  at  their  hands.^  It  would  seem  that  with- 
in the  limits  of  the  Confederac}'  the  Confederate  army  was 
not  to  be  so  considered,*  while  on  the  other  hand,  the  Federal 
troops  were  public  enemies  as  to  those  within  the  Confederate 
lines  and  their  act  excused  a  carrier  within  those  lines  for  the 
loss  of  goods  taken  by  them.'* 

§  294.  The  following  have  been  held  not  to  be  losses  by  the 
public  enemy :  The  damage  or  loss  of  goods  by  a  mob,  however 

1  The  Patria,  3  L.  R.,  Adm.  43G  ;  Colder  (Tenn  ),  308;  McCranie  v. 
S.  C,  1  Asp.  Mar.  Law  Cas.  71  ;  The  Wood,  24  La.  Ann.  Rep.  406  ;  Bland 
Teutonia,  3  L.  R.,  Adm.,  394;  S.  C.  v.  Adams  Express  Co.,  1  Duv.  (Ky.) 
24  L.  J.  (N.  S.)  21  ;  1  Asp.  Mar.  232 ;  Philadelphia,  etc.,  R.  Co.  v. 
Law  Cas.  32;  The  Heinrich,  3  L.  R.,  Harper,  29  Md.  330;  Holladay  v. 
Adm.  424 ;  The  Wilhelm  Schmidt,  25  Kennard,  supra;  Porcher  v.  North- 
L.  T.  (N.  S.)34.  eastern  R.  R.  Co.,  14   Rich  (S.  C), 

2  Russell  0.  Niemann,  34  L.  J.,  C.  181  ;  U.  S.  v.  Palmer,  3  Wheaton, 
P.  10;  S.  C,  10  L.  T.  786;  13  W.  610;  Thorington  v.  Smith,  8  Wall.  1. 
R.  93.  ■•  N.  &  C.    R.  R.    Co.  t'.  Estis,    7 

^  Salisbury  I'.  Harnden  Express  Co.,  Heisk.  (Tenn.)  622. 

10  R.  I.   244;    Hubbard  v.  Same,  ib.  *  Southern  Ex.   Co.   v.  Womaok,  1 

251 ;     Smith    v.    Brazelton,    1   Heisk.  ib.  256. 
(Tenn.)    44 ;     Lewis   v.    Ludwick,   6 

222 


CHAP.  XX.]  EXCEPTIONS.  [§  294. 

numerous  ;^  by  thieves  or  robbers,^  or  by  embezzlement,^  or  by 
rioters  or  insurgents/  is  not  within  the  exception.  In  the 
much-quoted  language  of  Lord  Holt,  "  Though  the  force  be 
never  so  great,  as  if  an  irresistible  multitude  of  persons  rob 
him,  the  carrier  is  nevertheless  chargeable."^  When  the  riot 
assumes  the  character  of  a  civil  war  it  comes  within  the  ex- 
ception, but  until  then  the  mere  fact  that  the  carrier  was  over- 
powered, does  not  affect  the  question  of  his  liability.^ 

The  opinion  of  Kenyon,  C.  J.,  in  Edwards  v.  Sherral,  is  not 
opposed  to  this  view  of  the  law,  though  the  carrier  was  held  to 
be  discharged.  During  the  bread  riots  at  Wolverhampton,  the 
plaintiff,  having  a  quantity  of  corn  which  the  mob  was  threat- 
ening to  seize,  stopped  a  boat  belonging  to  the  defendants  which 
happened  to  be  passing  the  town  and  without  informing  the 
captain  of  the  true  state  of  affairs,  induced  him  to  take  the 
corn  on  board.  The  corn  was  seized  by  the  rioters.  It  was 
held  by  the  court  that  though  the  carrier  would  ordinarily  be 
held  for  the  loss,  the  contract  was  so  tinged  with  fraud  that  in 
this  case  he  should  not  be  held  to  a  strict  common-law  liability.' 
Robbery  on  a  river  where  the  tide  ebbs  and  flows  is  not  a  loss 
within  the  exception  of  the  "jtublic  enemy,"  even  though  an 
Act  of  Congress  may  have  provided  that  such  robbery  shall  be 
deemed  pi  racy »  and  a  seizure  of  goods  by  an  officer  and  sol- 

'  Morse  v.  Stm.  T.  Raymond,  220  1  Wils.  R.  281  ;    Smith  v.  Shepherd, 

(24  Car.   II.);    1 -Vent.  190,  238;    2  Abb.  on  Shipping,  pp.  235,  287,  291, 

Leo.  69  ;    1  Mod.  85  ;   2  Keb.  866  ;  3  ch.  iv.,  §  2  (lOtli  ed.) ;   Lewis  v.  Lud- 

ib.  72,  112,  135;   Barclay,  d.  CucuUa,  wick,   6    Colder  (Tenn.),  368  ;    Wat- 

3  Doug.  389;     Trent,  etc.,   S.  Nav.  kinson  v.  Laughton,  8  Johns.  (N.  Y.) 

Co.    V.  Wood,  3  Esp.  127  ;    S.  C,  4  213;   Schieffelin  v.  Harvey,  6  ib.  170. 
Doug.    287;     Story    on    Bailments,  §         «  Forward  v.  Pittard,  1  T.  R.   27; 

526  ;   Angell  on  Carriers,  §  200.  Pittsburgh,   etc.,   R.  R.  Co.  v.  Hollo- 

2  1  Inst.  89  a;  Wooleip  &  Curties,  well,  65  Ind.  188;    Boon  v.  The  Bel- 

1  Roll's  Abr.  2;   Actions  sur  Case,  c.  fast,  40  Ala.  184;  N,  &  C.  R.  R.  Co. 

pi.  4  ;  Sutton  v.  Mitchell,  1  T.  R.  18;  v.  Estes,  supra. 

Kemp  r.  Coughtry,  11  Johns.  (N.Y.)         ^  Coggs    v.  Bernard,    2   Ld.    Ray- 

107  ;  Hall  v.  Cheney,  36  N.  H.  26.  mond,  909. 

"  Tenterden  on  Shipping,  Pt.  III.,         6  ^^ggg  (.j^-gj  above. 
ch.  iii.,  §  9,  p.  244  (5th  ed.)  ;   Roccus         ^  i  East,  604. 
(de  nav.  et  naut.,  40)  ;  Dale  v.  Hall,         s  The  Belfast  v.  Boon,  41  Ala.  50. 

223 


g  296.]  BILLS   OF   LADING.  [CUAP.  XX. 

diers  of  the  United  States  army,  though  unjustly  made,  is  also 
not  within  the  exception.' 

§  295.  The  exemption  under  consideration  will  not  avail 
a  carrier  who  has  been  guilty  of  negligence.^  If  the  public 
enemy,  for  example,  remove  the  goods  from  the  cars  of  a  rail- 
road carrier  and  desert  them,  it  is  the  carrier's  duty  to  take 
such  care  of  the  goods  thereafter  as,  under  the  circumstances, 
is  reasonable,  necessary  and  practicable,  and  failing  to  do  so 
he  is  liable  to  the  owner  for  the  loss.^  The  courts  have  found 
negligence  in  the  following :  ITeedless  delay  *  reshipment  by 
the  carrier  without  authority  ;*  the  taking  of  the  one  of  two 
routes  which  exposes  the  goods  to  the  greater  risk  of  capture;' 
collusion  with  the  enemy  or  allowing  the  goods  to  be  taken 
before  the  carrier  is  menaced  ;^  the  neglect  to  provide  for  an 
especially  hazardous  journey  an  express  agent  who  is  cool,  self- 
possessed  and  prudent* 

§  296.  The  loss,  however,  must  follov/  as  the  natural  and 
proximate  result  from  the  negligent  act  or  omission.  The  mere 
fact  of  negligence  will  not  of  itself  render  the  carrier  liable  if 
the  loss  is  in  fact  due  solely  to  the  public  enemy.'  Similar  to 
this  is  the  rule  where  two  causes  of  disaster  have  contributed 
to  bring  about  a  loss.  In  such  a  case  the  proximate  cause  of 
loss  is  the  one  to  which  it  is  to  be  ascribed.  Thus  a  temj^est 
may  carry  a  ship  upon  the  enemy's  coast,  the  act  of  God  thus 
enabling  the  enemy  to  capture  the  ship.  Shall  the  loss  here  be 
attributed  to  the  act  of  God  or  to  the  public  enemy?  The 
distinction  seems  to  be  clear.  If  the  vessel  was  wrecked  and 
the  property  inevitably  lost  before  falling  into  the  enemy's 

1  Seligman  v.  Armijo,  1  New  *  G.  &  B.  R.  Nav.  Co.  v.  ^larshall, 
Mexico,  459.  48  Ind.  596. 

2  Forward  v.  Pittard,  supra ;  Amies  ^  Express  Co.  v.  Kountze,  8  Wall. 
V.  Stevens,  4  Strange,   128;   Lawson  342. 

on  Contracts  of  Carriers,  §  13.  '^  James  v.  Greenwood,  20  La.  Ann. 

^  Wallace  v.  Sanders,  50  Ga.  134;  Rep.   297.     Collusion,    however,    will 

Philadelphia,  etc.,  R.  R.  Co.  v.  Har-  not  be  presumed.     Britton  v.  Aymar, 

per,  29   Md.   330 ;    Spaids  v.  N.  Y.  23  ib.  63. 

Mail  S.  S.  Co.,  3  Daly  (N.  Y.),  139.  »  Holladay    v.    Kennard,   12    Wall. 

*  Clark  V.  Pacific   R.    R.    Co.,  39  254. 

Mo.  184.  9  Clark    v.  Pacific    R.    R.    Co.,   39 

Mo.  184. 
224 


CHAP.  XX.]  EXCEPTIONS.  [§  297. 

hands,  the  loss  is  to  be  attributed  to  the  former  cause,  but  to 
the  latter  if  the  goods  would  have  been  safe  had  the  vessel' 
been  driven  upon  any  other  coast. 

In  Hahn  v.  Corbett^  the  vessel  had  been  stranded  off  the  coast 
of  South  America  and  was  lost.  The  goods  were  seized  by  com- 
mand of  the  governor  of  the  place  and  confiscated.  Best,  C.  J., 
held  that  this  was  a  peril  of  the  seas,  for  "  the  goods  were  lost 
when  the  ship  was  lost  and  what  happened  afterwards  makes 
no  difference  in  this  case."  On  the  other  hand,  in  Green  v. 
Elmslie,2a  ship,  when  off' the  coast  of  France,  was  blown  ashore 
by  the  wind  and  while  as  yet  urjharmed  was  captured  by  the 
enemy.     Lord  Kenyon  held  this  to  be  loss  by  the  king's  enemies. 

These  distinctions  are  sometimes  of  importance,  as  where 
under  the  terms  of  the  bill  of  lading,  as  is  not  infrequent,  it  is 
agreed  that  the  carrier  shall  insure  against  certain  classes  of 
lossand  that  the  shipper  shall  not  hold  him  responsible  forothers.^ 

§  297.  An  outbreak  of  hostilities  or  a  declaration  of  war  be- 
tween the  state  of  the  carrier  and  the  country  of  destination 
may  operate  as  a  defence  within  this  exception.  Such  an  event, 
in  some  instances,  will  render  the  contract  of  the  bill  of  lading 
absolutely  void  and  in  others  it  will  simply  operate  to  justify 
delay  or  deviation.  If,  by  it,  the  voyage  is  broken  up,  or  the- 
completion  of  it  becomes  unlawful,  or  if  the  nature  of  the  cargo- 
is  such  that  it  cannot  endure  delay,  the  contract  is  dissolved.*' 
This  is  the  effect  of  a  hostile  blockade  of  the  port  of  destination.'^ 
If,  however,  the  performance  is  simply  delayed  by  the  hostili- 
ties, the  carrier  may  detain  the  goods  until  he  can  safely  proceed 
upon  the  voyage  and  he  cannot  be  held  liable  for  such  delay.®- 
Such  is  usually  the  effect  of  a  blockade  of  the  port  of  departure.^' 

The  carrier  will,  nevertheless,  be  liable  if  the  delay  is  really 
due  to  his  servant's  misconduct  rather  than  to  the  war.     The 

»  2  Bing.  205.  Abbot  on  Shipping  (7th  Am.  ed.),  *p. 

2  Peake  N.  P.  278  (34  Geo.  III.).  596,  note,  and  cases  cited. 

*  Story  on  Bailments,  §  526  ;  King  «  Scott  v.  Libby,  2  Johnson  (N. 
V.  Shepherd,  3  Story's  C.  C.  Rep.  Y.),336;  Stoughton  r.  Rappalo,  3  S. 
349;    Porcher  v.   N.   E.   R.  R.   Co.,  &  R.  (Pa.)  559. 

14  Rich.  S.  C.  181  ;   Spaids  v.  N.  Y.  «  Abbot  on  Shipping,  supra. 

Mail    S.    S.    Co.,  3    Daly    (N.    Y.),  ^  Pahner  v.  LoriUard,   16  Johnson 

139.  (N.  Y.),  348;  Ogden  v.  Barker,.  18. 

*  Brown  v.  Delano,  12  Mass.  373;  ib.  87. 

15  225 


I  298.]  BILLS   OF   LADING.  [CHAP.  XX. 

plaintiff's  agent  in  Bordeaux  shipped  goods  on  the  defendants' 
ship  to  be  delivered  at  ^N'ew  Orleans.  A  British  privateer  was 
cruising  beyond  St.  Thomas  and  the  captain,  fearing  capture, 
stopped  at  St.  Thomas  and  sold  the  goods.  The  plaintiff  sued 
for  the  amount  he  would  have  received  at  New  Orleans  if  the 
goods  had  been  delivered  according  to  the  bill  of  lading.  It 
was  held  that  the  captain's  conduct  was  not  justifiable  and  that 
the  defendants  were  liable.^ 

§  298.  A  stipulation  that  the  carrier  shall  not  be  liable  for 
"loss  by  rats"  is  customarily  added  to  the  modern  bill  of  lading, 
it  having  been  repeatedly  decided  by  the  courts  that  damage  by 
rats  does  not  fall  within  the  meaning  of  the  phrase  "  perils  of 
the  sea."2  This  would  seem  to  be  the  reverse  of  the  rulings  of 
the  civil  law  on  the  subject.^ 

A  usage  or  custom  cannot  be  introduced  to  prove  that  such  a 
loss  is  to  be  considered  a  peril  of  the  sea.* 

In  Aymar  v.  Astor^  it  was  said :  "  The  true  question  to  be 
submitted  to  the  jury  was  whether  the  master  had  used  ordi- 
nary care  and  diligence.  Whether  a  cat  is  a  sufficient  precau- 
tion against  rats,  or  whether  smoking  tlie  vessel  is  the  proper 
and  more  efficacious  remedy,  is  a  proper  subject  for  the  con- 
sideration of  the  jury.  Formerly,  taking  a  cat  on  board  was 
accounted  ordinary  diligence  and  excused  from  damages.  If 
subsequent  experience  has  shown  a  better  remedy  it  is  the  duty 
of  masters  and  owners  to  adopt  it,"  This  is  perhaps  a  more 
nearly  correct  statement  of  the  law  than  that  of  Mr.  Justice 
Story  in  his  treatise  on  Bailments:  "If  the  master  has  used 
all  reasonable  precautions  to  prevent  such  a  loss,  as  by  having 
a  cat  on  board,  it  is  by  the  general  consent  of  the  writers  upon 

'   St.  Marc  v.  La  Chapella,  1  Mar-  every  other  dangers  and  accidents  of 

tin's  La.  Rep.  36.  the  sea,  rivers,  and  navigation  ot  what 

*  Dale  V.  Hall,  1  Wils.  281 ;  Hunter  kind  and  nature  soever."     Held,  that 

V.  Potts,  4  Camp.  203 ;    Laremie  v.  loss  by  rats  was  not  within  these  ex- 

Drury,    8   Exch.    166;    The   Barque  ceptions. 

Carlotta,   3  Asp.  Mar.  Law  Ca.   (N.  ^  Emerig.  Assecur,  377,  378  ;   Roc- 

S.)  456 ;  also  in  9  Benedict  Rep.  1 ;  cus  de  Navi,  n.  58  ;  Roccus  de  Asse- 

3    Kent's   Comm.    300.     In   Kay   v.  cur,  n.  49. 

Wheeler,    L.    R.,    2    C.   P.   302,   the  *  Aymar  u.  Astor,  6  Cowen  (N.  Y.), 

bill  excepted  "the  act  of  God,  the  267. 

queen's  enemies,    fire,    and    all    and  ^  lb. 

226 


CHAP.  XX.]  EXCEPTIONS.  [§  299. 

foreign  maritime  law  held  to  be  a  loss  by  the  peril  of  the  sea 
or  inevitable  accident."^  This  view  of  the  law  has  been  criti- 
cised by  Chief  Baron  Pollock,  in  Laremie  v.  Drury.^ 

In  Stevens  v.  T^avigazione  Generale  Italiana,^  the  bill  of  lading 
exempted  the  ship  from  liability  for  "damage  done  by  vermin." 
The  court  held  that  the  exception  did  not  release  the  ship  from 
liability  for  negligence  in  failing  to  fumigate  and  drive  ou-t  rats. 

§  299.  A  "loss  by  vermin"  is  not  within  the  exceptum  perils 
of  the  sea.  In  "  The  Miletus"*  it  was  shown  that  the  labels  on 
an  invoice  of  chests  of  tea  had  been  eaten  by  cockroaches,  thus 
occasioning  loss  to  the  shippers.  The  court  held  that  this  was 
not  the  result  of  a  peril  of  the  sea  or  of  any  of  the  dangers 
and  accidents  of  navigation.  There  are  numerous  cases  on  the 
books  to  the  eftect  that  the  destruction  of  the  bottom  of  a  vessel 
by  worms  is  not  a  peril  of  the  sea,®  but  the  rule  is  different 
where  the  damage  is  caused  by  sea-water  escaping  through  a 
hole  made  by  rats.  Thus  in  the  recent  English  case  of  Hamil- 
ton V.  Pandorf  ^  rice  was  shipped  under  a  bill  of  lading  which 
excepted  "dangers  and  accidents  of  the  seas."  During  the  voy- 
age rats  gnawed  a  hole  in  a  pipe  on  board  the  ship,  by  which 
sea-water  escaped  and  damaged  the  rice.  It  did  not  appear 
that  there  was  negligence  or  default  on  the  part  of  the  owners 
of  the  ship  or  their  servants.  The  House  of  Lords  decided  that 
the  damage  was  within  the  exception  and  that  the  ship-owners 
were  not  liable. 

1  Abbot  on  Shipping,  Pt.  3,  Ch.  3,  §  1101,  vol.  I.  This  is  certainly  the 
§  9  (5th  ed.).  This  view  of  the  law  law  where  the  ship  has  been  sailino^ 
is  taken  in  Garrigues  v.  Cone,  1  Bin-  in  an  ocean  where  worms  ordinarily 
ney  (Pa.),  592.  assail  and  enter  the  bottom  of  vessels. 

2  Svpra.  In  The  Bark  Carlotta,  3  Hazard  v.  New  England  Marine  Insu- 
Asp.  Nav.  Law  Ca.  (N.  S.),  456,  ranee  Co.,  1  Sumner,  218.  In  Depey- 
even  the  fact  that  the  ship  had  been  ster  v.  Columbian  Ins.  Co.,  2  Caines, 
fumigated  does  not  seem  to  have  85,  Livingston,  J.,  commenting  on 
brought  the  damage  within  the  perils  Kohl  v.  Parr,  said:  "I  do  not  by 
of  the  sea.  anything  that  has  been  said  mean  to 

^  39  Fed.  Rep.  562.  be   understood   as   subscribing  to  the 

*  5  Blatch.  C.  C.  335.  nisi    prius   opinion  of  Lord   Kenyon. 

*  Rohl  V.  Parr,  1  Esp.  444  (36  Geo It  is  not  necessary  to  decide 

II.),  opinion  by  Lord  Kenyon;  Mar-     this  question  now." 

tin   V.   Salem  Marine  Insurance   Co.,         ^  L.  R.  12  App.  Cases,  518. 
2   Mass.  420 ;  Phillips  on  Insurance, 

227 


301.] 


BILLS   OF   LADING. 


[chap.  XXI. 


CHAPTER  XXI. 

EXCEPTIONS    CoNTiNUKD— RESTRAINT    BY    LEGAL    PROCED- 
URE-RESTRAINT   OF   PRINCES— OF   PEOPLE. 


"Restraint  by  legal  procedure,"  ne- 
cessity for  the  exception,  §  300. 

Obligations  of  the  carrier  when  legal 
seizure  is  inade,§  301. 

Opinion  in  the  case  of  Stiles  v.  Davis, 
§  302. 

Conflicting  opinion  in  Massachusetts, 
§  303. 

Definition  of  exception  "restraint  of 
princes,"  §  304. 


Seizure  for  violation  of  customs  laws 
within  the  exception,  §  305. 

Embargo,  blockade,  and  neutrality 
edicts  generally  within  the  excep- 
tions, §§  306,  307,  308. 

Etiect  of  damage  by  delay  caused  by 
quarantine  regulations,  §  309. 

Restraint  of  princes  and  restraint  of 
people  practically  synonymous  terms, 
§310. 


§  300.  If  the  language  of  Finlay  v.  Liverpool,  etc.,  Steamship 
Company^  is  authoritative,  a  stipulation  exonerating  the  carrier 
from  the  restraints  of  courts  of  law  or  by  legal  procedure  should 
be  contained  in  the  bill  of  lading.  It  may,  however,  well  be 
doubted  whether  such  a  provision  is  altogether  necessary  to 
exempt  the  carrier  from  his  liability  where  delivery  is  impos- 
sible because  of  a  legal  seizure  of  the  goods.  •  In  very  many 
cases  the  principle  has  been  thus  broadly  stated :  A  carrier  is 
not  liable  for  goods  taken  out  of  his  hands  by  legal  process 
and  when  goods  are  attached  in  his  hands  he  cannot  give  them 
up  to  the  consignee  while  the  attachment  is  pending  and  this, 
it  appears,  without  regard  to  the  provisions  of  the  bill  of 
lading.'* 

§  301.  When  such  a  seizure  is  made,  however,  the  carrier 
must   assure   himself   that   the   proceedings   are   regular   and 


'  23  L.  T.  N.  S.  Exch.  251.  Mail    Co.,    37    ib.    122;    Burton    v. 

^  Stiles    V.    Davis,    1    Black,    101;  Wilkinson,   18   Vt.   186;    Ohio,   e\c  , 

Bliven  v.  Hudson,  etc.,   R.   R.  Co.,  R.    R.    Co.    v.   Tohe,   51    lud.    181  ; 

36    N.   Y.  403;    Same  v.   Same,   35  Angell  on  Carriers,  §  337  a. 
Barb.    188;    Van    Winkle   v.  U.    S. 

228 


CHAP.  XXI.]  EXCEPTIONS.  [§  303. 

valid.'  He  must  immediately  notify  the  consignor  of  the  fact 
of  the  seizure,^  but  beyond  he  is  bound  neither  to  litigate  for 
his  bailor,  nor  to  show  that  the  decision  of  the  court  issuing 
the  process  is  correct  in  law  or  fact,  nor  to  assert  the  title  of 
the  bailor,  nor  to  follow  the  goods.^ 

In  a  Massachusetts  case,  where  the  action  was  for  the  non- 
delivery of  a  quantity  of  spirituous  liquors  and  the  carrier 
alleged  that  the  goods  had  been  taken  out  of  his  hands  by  a 
constable  upon  a  writ  of  attachment,  the  court  held  that,  inas- 
much as  spirituous  liquors  could  not  be  legally  sold  under  exe- 
cution according  to  the  existing  laws  of  the  commonwealth,  the 
attachment  was  void  and  the  officer  a  trespasser.  The  carrier 
was  held  liable.^ 

§  302.  This  case  is  not  easily  reconcilable  with  the  ruling  of 
the  Supreme  Court  of  the  United  States  in  Stiles  v.  Davis.** 
This  was  an  action  of  trover  for  the  loss  of  goods  delivered  to 
the  carrier.  The  defendant  showed  that  the  goods  had  been 
purchased  by  the  consignor  from  the  assignee  of  an  insolvent 
iirni  and  while  in  transit  had  been  seized  under  an  attachment 
sued  out  by  creditors  of  the  former  owners  as  property  of  the 
insolvent  firm.  Mr.  Justice  Xelson,  in  delivering  the  opinion 
of  the  court,  held  that  the  right  of  the  officer  to  hold  the  goods 
could  be  determined  only  by  the  court  having  jurisdiction  in 
the  attachment  suit ;  that  the  fact  that  the  goods  were  seized 
under  an  attachment  against  third  persons  did  not  impair  the 
legal  eftect  of  the  seizure  and  custody  of  the  goods  under  it  so 
as  to  justify  the  defendant  in  taking  them  out  of  the  hands  of 
the  sheriff,  and  that  the  plaintilf 's  remedy  was  not  against  the 
carrier,  but  against  the  officer  who  had  wrongfully  seized  them, 
or  against  the  plaintiff  in  the  attachment  suit  if  he  directed  the 
seizure. 

§  308.  Another  Massachusetts  case  is  even  more  directly  in 
conflict  with  the  doctrine  of  Stiles  v.  Davis.     In  Edwards  v. 

^  Bllven   V.    Hudson,    etc.,    R.  R.  R.   Co.  v.  Tohe,  supra;  The  Onrust, 

Co.,  35  Barb.  188.  1  Ben.  431. 

2  Scrantom  v.  Farmers'  Bank,  24  *  Kiff'  v.  Old  Colony,  etc.,  R.  R. 
N.  y.  424  and  cases  cited  supra.  Co.,  117  Mass.  591. 

3  Bliven    v.    Hudson,    etc.,    R.  R.  «  1  Black,  101. 
Co.,    35    Barb.   188;    Ohio,    etc.,  R. 

229 


§  303.]  BILLS   or   LADING.  [CIIAP.  XXI. 

White  Line  Transit  Company^  the  facts  were  substantially  the 
same  as  in  that  case,  the  goods  in  transit  having  been  attached 
as  the  property  of  a  third  person.  The  suit  was  here  brought 
on  the  carrier's  contract  to  deliver  the  goods  and  it  was  held 
that  the  facts  of  the  case  presented  no  grounds  for  the  relief  of 
the  carrier.  The  Federal  case  is  thus  distinguished:  "In  Stiles 
V.  Davis,  the  action  was  not  brought  upon  the  contract  of  car- 
riao-e ;  nor  for  a  violation  by  the  defendant,  of  his  obligations 
as  carrier.  It  was  an  action  of  trover  for  the  conversion  of  the 
goods.  The  failure  to  deliver  the  goods  at  another  place  than 
that  of  their  destination  upon  a  demand  made  there,  with  no 
denial  of  the  plaintifl"s  right,  but  merely  for  the  reason  that 
they  were  detained  under  attachment  by.  legal  process,  would 
not  be  a  conversion  of  the  property.  The  case  decides  nothing 
more.  The  question  w^iether  the  same  facts  would  constitute 
a  good  defence  to  a  suit  against  the  defendant  for  breach  of 
his  contract  or  obligation  as  common  carrier,  was  not  decided 
and  was  not  raised  by  the  form  of  the  action.  The  opinion  by 
Mr.  Justice  Nelson  does  indeed  assign  as  a  reason  for  the 
decision  that  the  goods  '  were  in  the  custody  of  the  law,  and 
the  defendant  could  not  comply  with  the  demand  of  the  plain- 
tifls  without  a  breach  of  it ;'  that  '  the  right  of  the  sheriff  to 
hold  them  was  a  question  of  law  to  be  determined  by  the 
proper  legal  proceedings  and  not  at  the  will  of  the  defendants 
nor  that  of  the  plaintifts.'  But  this  language  must  be  inter- 
preted with  reference  to  the  precise  question  then  under  con- 
sideration. In  one  sense  the  property  was  in  the  custody  of 
the  law,  so  far,  at  least,  that  the  surrender  of  its  possession  to 
the  officer  claiming  to  attach  it  upon  legal  process  was  not 
tortious  on  the  part  of  the  carrier  so  as  to  subject  him  to  the 
charge  of  converting  it  to  his  own  use.  But  that  custody  was 
of  no  efiect  against  any  one  having  an  interest  in  the  property 
not  made  party  to  the  suit  in  which  the  process  issued.  It  was 
not  in  the  custody  of  the  law  in  the  sense  in  which  property 
that  is  the  subject  of  proceedings  in  rem  is  in  the  custody  of 
the  law  or  property  actually  belonging  to  the  party  against 
whom  the  suit  is  brought.     In  personal  actions,  the  attachment 

1  104  Mass.,  159. 

230 


CHAP.  XXI.]  EXCEPTIONS.  [§  305. 

of  property  of  another  than  a  defendant  in  the  suit  is  a  trespass  ; 
and,  as  to  the  true  owner,  the  property  is  not  regarded  as  iu 
the  custody  of  the  law 

"As  against  the  plaintiffs  it  was  no  more  validity  than  a  tres- 
pass by  any  other  unauthorized  proceeding,  or  by  any  unofficial 
person.  The  carrier  is  not  relieved  from  the  fulfilment  of  his 
contract,  or  his  liability  as  carrier,  by  the  intervention  of  such 
au  act  of  dispossession  any  more  than  he  is  by  destruction  from 
fire  or  loss  by  theft,  robbery,  or  unavoidable  accident.  In 
neither  case  is  he  liable  in  trover  for  conversion  of  the  property  ; 
but  he  is  liable  on  his  contract  or  upon  his  obligations  as  com- 
mon carrier." 

§  304.  In  Finlay  v.  Liverpool,  etc.,  Steamship  Company,^  the 
exception  "  restraint  of  princes"  is  defined  as  the  forcible  inter- 
ference of  the  state  or  government  of  a  country,  taking  posses- 
sion of  the  goods  manu  forti.  It  does  not,  it  was  there  said, 
extend  to  legal  procedure  in  the  courts,  nor  in  an  action  founded 
on  a  contract  can  the  act  of  a  court  of  law  deciding  that  the 
carrier  shall  hold  the  goods  to  the  order  of  the  true  owner,  re- 
lieve him  from  performing  his  contract,  unless  such  act  or  de- 
cision has  been  expressly  excepted  in  the  bill  of  lading.  Such 
was  the  language  of  the  court  in  this  case  with  reference  to  one 
of  the  pleas  of  the  defendants,  but  another  plea  setting  up  that 
the  goods  were  not  the  property  of  the  shippers  and  that  they 
had  had  no  right  to  ship  them,  and  that  they  had  fraudulently 
"  endorsed  the  bill  of  lading  for  them  to  the  plaintiffs  and  that 
the  master  had  been  compelled  by  the  decision  of  the  Supreme 
Court  of  j^ew  York  to  deliver  said  goods  to  the  order  of  the 
true  owner,"  was  held  to  be  good,  since  it  denied  the  plaintiffs' 
title  to  the  goods.^ 

§  305.  Seizure  or  confiscation  of  goods  for  the  unintentional 
violation  of  the, customs  laws  of  a  country  is  probably  within 
the  exception.^  It  has  been  expressly  held  that  these  are  not, 
however,  within  the  scope  of  such  other  exceptions  as  the  "  act 

1  23  L.  T.  N.  S.  Exch.  251.  port  of  departure.     Crow  v.  Falk,   8 

2  The  phrase  "restraint  of  princes,     A.  &  E.  N.  S.  467. 

etc.,  upon  the  voyage"  does  not  apply  "  This  seems  to  be  implied  in  the 
"until  the  vessel  has  set  sail  from  the    cases  hereafter  cited. 

231 


§  306.]  BILLS   OF   LADING.  [CIIAP.  XXI. 

of  Gofl,"  "the  public  enemy,"  "perils  of  the  sea,"  and  "dangers 
of  navigation,"  nor  will  the  fact  that  the  taking  was  against  the 
will  and  without  the  default  of  the  carrier  serve  to  exonerate 
him  if  protected  only  by  the  foregoing  exceptions.^  In  IIow- 
land  V.  Greenway*  the  master  appears  to  have  consulted  the 
Brazilian  consul  at  New  York,  before  setting  sail  for  Rio  de 
Janeiro,  as  to  the  Brazilian  customs  laws,  and  acting  upon  the 
information  thus  given  him  to  have  neglected  to  enter  upon 
his  manifest  certain  goods,  which  were  accordingly  seized  and 
confiscated.  The  bill  of  lading  contained  the  clause  "  perils  of 
the  sea,"  and  the  fact  that  the  master  acted  in  good  faith  and 
without  design  to  defraud  was  not  questioned.  The  carrier 
was  nevertheless  held  liable. 

§  306.  Embargo,  blockade  and  neutrality  edicts  and  laws  may 
come  within  the  exception  under  consideration.^  The  restraint 
contemplated  by  the  phrase,  however,  must  be  actual  and  ope- 
rative and  not  merely  expected  or  contingent.*  Said  Lord 
Ellenborough,  in  Atkinson  v.  Ritchie  :^  "  Such  a  state  of  cir- 
cumstances must  be  shown  as  that  the  contract  is  no  longer 
capable  of  being  performed  without  a  criminal  compromise  of 
public  duty."  So  where  an  English  vessel  left  St.  Petersburg 
upon  a  general  rumor  of  a  hostile  embargo  being  laid  on  British 
ships  by  the  Russian  government,  it  was  held  that  this  did  not 
justify  a  breach  of  contract  by  the  master,  though  he  acted  in 
good  faith  and  under  a  reasonable  and  well-grounded  apprehen- 
sion.^ The  mere  information  by  a  belligerent  to  a  neutral  vessel 
of  a  blockade  is  said  in  a  Massachusetts  case  not  to  be  a  re- 
straint,'^ and  in  Evans  v.  Hutton,^  where   the  action  was  as- 

'  Spence  v.  Chadwick,  10  A.  &  E.  proper  delay   or  deviation    is    under 

N.  S.   516;    Howland   v.  Greenway,  this  exception  permissible.     See  The 

22  How.  491  ;   Gosling  v.   Higgins,  1  Express,  L.  R.  3  Adm.  &  Ecc.   597  ; 

Camp.  451.  The  Teutonia,  ib.   394;   S.  C.  on  ap- 

*  22  How.  491.  peal,  L.  R.  4  P.  C.  471 ;  Esposito  v. 
3  Geipel  v.  Smith,  L.  R.  7  Q.  B.  Bomden,  L.  J.  27  Q.  B.  17.    • 

404;   Atkinson   v.   Ritchie,   10    East,  ^  lo  East,  530. 

530;    Sjoerds    v.   Luscombe,    16    ib.  ^  Atkinsons.  Ritchie,  ib. 

201  ;  Blight  v.  Page,  note  to  3  B.  &  P.  '  Richardson   v.   Maine,    etc.,    Ins. 

295  and  cases  following.  Co.,  6  Mass.  102. 

*  From  the  analogies  it  cannot  well  *  4  M.  &  G.  954. 
be    doubted    that    a    reasonable   and 

232 


CHAP.  XXL]  EXCEPTIONS.  [§  308- 

sumpsit  upon  the  nndertaking  to  carry  goods  in  defendant's 
ship  to  Canton,  and  the  plea  set  up  that  one  Elliot  being  super- 
intendent of  the  trade  of  Her  Majesty's  subjects  to  and  from 
China,  and  one  Smith  then  being  captain  of  Her  Majesty's  ship 
The  Volage,  did,  for  divers  good,  sufficient  and  lawful  reasons 
and  not  for  any  wrongful,  negligent,  unlawful  or  improper  act 
or  behavior  on  the  part  of  the  defendants,  forcibly  interrupt  the 
said  ship  from  further  proceeding  on  its  said  voyage  to  Canton 
and  did  prohibit,  prevent  and  discharge  the  said  ship  from  pro- 
ceeding to  Canton,  etc.  It  was  held  on  special  demurrer  that 
this  plea  was  bad  for  not  sufficiently  disclosing  that  Captains 
Elliot  and  Smith,  as  chief  superintendent  and  commander  of 
the  naval  forces  in  the  China  Seas  respectively,  had  authority 
to  act  in  the  manner  alleged. 

§  307.  In  Geipel  v.  Smith'  it  was  shown  that  by  charter-party 
it  was  agreed  that  defendant's  vessel  should  load  with  coals  and 
should  then  proceed  to  Hamburg  and  there  deliver  the  same, 
restraint  of  princes  and  of  rulers  being,  inler  alin^  excepted. 
The  pleas  set  up  that,  before  there  had  been  any  breach  of  the 
charter-party,  a  war  had  broken  out  between  France  and  Ger- 
many and  that  the  port  of  Hamburg  was  blockaded  by  a  French 
fleet;  that  the  Queen  of  England  had  enjoined  a  strict  neutrality 
on  the  part  of  her  subjects ;  that  the  performance  of  the 
charter-party  became  thus  illegal,  and  that  the  defendants,  as 
they  lawfully  might,  refused  to  carry  out  the  same.  The  court 
held  that  the  pleas  disclosed  substantially  a  good  defence,  for 
that  the  charter-party,  being  for  one  single  adventure  to  com- 
mence at  once  and  the  contract  being  still  executory,  the  de- 
fendants were  justified  in  throwing  up  the  contract  and  refusing 
to  load  the  ship  when  the  further  performance  of  the  contract 
within  a  reasonable  time  was  prevented  by  an  excepted  clause, 
to  wit,  the  blockade  which  was  a  "  restraint  of  princes." 

§  308.  A  series  of  early  cases  decides  that  the  exception  re- 
straint of  princes  or  rulers  in  a  charter-party  does  not  operate 
for  the  benefit  of  any  one  but  the  owners  of  the  ship,  unless  it 
be  expressly  stipulated  that  the  benefit  of  the  exception  shall 
be  mutual,  and  if  a  merchant  hire  a  ship  to  go  to  a  foreign 

1  L.  R.  7  Q.  B.  404. 

283 


§  310.]  BILLS    OF    LADING.  [CIIAP.  XXI. 

port  and  covenant  there  to  furnish  a  cargo,  an  emhargo  or  pro- 
hibition on  the  part  of  the  foreign  government  forbidding  the 
export  of  the  intended  cargo  does  not  dissolve  the  contract  so 
far  as  the  shipper's  liability  under  it  is  concerned.^ 

§  309.  In  the  case  of  The  Bohemia^  there  was  in  the  bill  of 
lading  an  exception  for  damage  or  decay  caused  by  delay  from 
"restraint  of  princes,  rulers,  or  people."  The  steamer  was  de- 
layed at  quarantine  for  fourteen  days  and  the  potatoes  which 
she  had  on  board  were  spoiled  by  the  delay.  The  court  held 
that  the  ship  was  not  liable  for  the  damage. 

§  310.  The  meaning  of  the  phrase  "  restraint  of  people"  dif- 
fers in  no  material  way  from  that  of  "  restraint  of  princes."  The 
word  "  people"  in  this  sense  means  the  supreme  power  of  the 
country,  whatever  it  may  be.  Hence  where  a  mob  or  a  multi- 
tude of  people  seize  a  vessel  and  compel  the  master  to  sell  the 
cargo,  this,  though  an  act  of  piracy,  does  not  come  within  the 
exception  under  consideration.^ 

^  Sjoerds    v.    Luscombe,    16    East,  compose  the  cargo,  or  by  the  terras  of 

201  ;  Blight  v.  Page,  note  to  3  B.  &  the  contract  are  destined  to  compose 

P.   295 ;   Touteng   v.  Hubbard,   3  B.  it,  performance   being   thus   rendered 

&  P.   293  ;    Bruce  v.   Nicolopulo,    24  illegal  by  an  authority  to  which  both 

L.  J.  Ex.  321.  ■  parties    owe    allegiance,   damages    for 

Mr.  Leggett  gives  the  converse  of  non-performance    cannot    be    claimed 

this  proposition  in  these  words:   "If  by    either."       Leggett     on    Bills    of 

the    government    of    the    country   to  Lading,  p.  171. 

which  a  ship  and  cargo  belong  should  ^  3g  Fgj.  Rep.  75G. 

prohibit  the  exportation   or  importa-  ''  Nesbitt   v.    Lushington,    4   T,   K. 

tion  of  the  particular  commodities  that  783. 

234 


CHAP.  XXII.] 


EXCEPTIONS. 


[§  312. 


CHAPTER  XXII. 

EXCEPTIONS  Continued -"RIOTS,  STRIKES,  AND  STOP- 
PAGES OF  LABOR"-"RISK  OF  .BOATS"  -  "AT  SHIP'S 
RISK"-"  ROBBERS  AND  THIEVES"-"  RUST"-"  SWEAT." 


"Riots,  strikes  and  stoppages  of  la- 
bor," generally,  §  311' 

Exception  not  always  necessary  to  be 
inserted  in  the  bill,  §  312. 

Delay  caused  by  a  strike,  §  313. 

Delay  caused  by  an  armed  mob, 
§§314,  315. 


Decisions  of  Federal  Courts  in  regard 

to  strikes,  §  316. 
"Risk  of  boats,"  §  317. 
"At  ship's  risk,"  §  318. 
"Robbers  and  thieves,"  §§  319,  320. 
"Rust,"  §  321. 
"Sweat,"  §  322. 


§  311.  The  exception  "riots,  strikes  and  stoppages  of  labor" 
is  of  such  recent  addition  to  the  forms  of  bills  of  lading  in  com- 
mon use  that  as  yet  it  lacks  authoritative  construction.  It  has 
been  added  for  the  evident  purpose  of  avoiding  responsibility 
on  the  carrier's  part  for  damage  or  delay  to  goods  in  traiisit 
during-  periods  of  public  disturbance  and  particularly  during 
labor  riots,  such  as  have  in  recent  years  been  of  frequent  occur- 
rence. That  the  common  law  exception,  "  the  king's  enemies," 
did  not  include  the  damage  done  by  rioters  is  clear'.^ 

§  312.  It  does  not  necessarily  follow  from  this,  however, 
that  a  carrier  is  to  be  held  liable  for  damages  of  this  sort,  un- 
less the  exception  occurs  in  his  bill  of  lading.  The  law  appears 
to  be  quite  otherwise.  The  first  American  case  of  a  strike 
being  pleaded  in  a  suit  on  the  carrier's  contract  is  Blackstock 
V.  Kew  York  and  Erie  R.  R.  Co.,^  decided  in  1859.  The  action 
was  brought  for  a  delay  in  the  carriage  of  a  large  quantity  of 
potatoes  from  Hornellsville  to  New  York  and  it  was  shown 
that  of  one  hundred  and  sixty -eight  engineers  in  the  employ  of 
the  railroad  company,  one  hundred  and  forty  had  suddenly  and 
together  abandoned  their  engines,  for  the  purpose  of  compelling 


1  Section  on  "the  public  enemy."  ^  20  N.  Y.  48 


235 


g  313  1  BILLS   OF   LADING.  [CHAP.  XXII. 

the  company  to  rescind  a  regulation  which  the  court  considered 
proper  and  reasonable.  It  did  not  appear  that  the  higher  officers 
of  the  company  were  at  all  in  fault.  It  was  nevertheless  held 
that  the  corporation  was  liable.  Mr.  Justice  Denio,  in  deliver- 
ing the  opinion  of  the  court,  said:  "  I  cannot  see  anything  in 
the  circumstances  of  the  defendants  to  take  the  case  out  of 
the  rule"  {respondeat  superior).  "  Being  a  corporation,  all  their 
business  must  necessarily  be  conducted  by  agents  and  if  they 
are  not  liable  for  their  acts  and  omissions,  parties  dealing  with 
them  have  no  remedy  at  all.  A  railroad  company  is  no  doubt 
peculiarly  exposed  to  loss  from  the  misconduct  of  its  engineers 
and  in  the  present  case  it  does  not  appear  that  the  slightest 
blame  can  attach  to  any  of  the  superior  officers  of  the  com- 
pany. .  .  .  Still,  this,  we  have  seen,  cannot  avail  them  as  a 
defence." 

§  313.  It  follows,  therefore,  that  the  carrier  is  liable  for  the 
delay  occasioned  by  a  strike  of  its  employes,  as  well  as  for  their 
other  wrongful  acts  and  negligence.'  This  doctrine  is  an- 
nounced in  a  more  recent  case  in  Missouri,^  where  it  was  held 
that  the  mere  proof  of  the  existence  of  a  strike  does  not  relieve 
the  carrier  from  his  liability  for  delay.  The  language  of  the 
court  is  explicit:  "We  think  the  court  (below)  declared  the 
law  correctly  in  requiring  that  in  order  to  amount  to  an  excuse 
for  the  delay,  the  obstructions  to  the  running  of  trains  should 
have  been  the  work  of  persons  other  than  the  employes  or  ser- 
vants of  the  road.  A  company  will  be  held  responsible  for 
damages  resulting  from  a  delay  to  transport  freight  in  the  usual 
time,  when  it  is  caused  by  its  servants  suddenly  and  wilfully 
refusing  to  work.  Because  the  employes  refuse  to  work  or 
perform  their  usual  employment,  it  will  not  release  the  com- 
pany or  the  carrier  from  the  responsibility  of  his  contract.  It 
may  be  his  misfortune,  but   third  persons   are  not  to  suffer 

1  "He  is  liable  for  a  delay  caused  ama  R.  R.  Co.  (17  N.  Y.  362),  where 

by  ...   .  the  negligence  or  wrongful  the  delay  was  by  the  wrongful  act  of 

acts  of  his    agents    and    servants,   as  only  one  man,  the  conductor  ;  but  the 

where    ....  the   transportation    is  carrier  was  held  liable, 

delayed  by  a  strike  among  the  engi-  ^  Read  v.   St.  Louis,  Kansas  City, 

neers   of    the    road."       Edwards   on  and  Northern  R.  R.  Co.,  60  Mo.  199. 
Bailments,  §  609.     See  Weed  v.  Pan- 
236 


CHAP.  XXII.]  EXCEPTIONS.  [§  315. 

thereby.  His  liability  is  all  the  same,  whether  he  could  get 
others  to  supply  their  places  or  not." 

§  314.  Farther  on  the  court  suggest  a  distinction,  which  is 
followed  in  the  latter  case  in  these  words:  "If  the  trains  were 
delayed  or  interrupted  by  an  armed  mob,  over  which  the 
defendant  had  no  control,  that  might  afford  an  excuse,  provided 
reasonable  care  and  diligence  were  used  by  the  defendant ;  but 
for  the  acts,  omissions  and  wrongs  of  its  servants,  it  was  liable 
over  to  the  plaintift'."^ 

In  Pittsburgh,  Ft.  Wayne,  and  Chicago  E.  R.  Co.  v.  Jlazen,^ 
the  following  facts  appeared  in  the  court  below :  Ilazen  had 
shipped  cheese  from  Chicago  to  iN'ew  York  on  December  10th. 
It  was  delivered  to  the  consignees  on  the  28th  day  of  December 
in  a  frozen  condition.  The  usual  period  of  transit  did  not  ex- 
ceed twelve  days.  The  weather  from  the  10th  to  the  23d  of 
December  was  not  severe,  but  the  severe  cold  had  occurred 
between  the  23d  and  the  28th.  The  railroad  company  ottered 
to  show  that  the  sole  cause  of  delay  was  the  obstruction  of  the 
passage  of  trains  in  the  neighborhood  of  Leavitsburg,  resulting 
from  the  irresistible  violence  of  a  large  number  of  lawless  men, 
some  of  whom  had  been  previously  employed  by  the  railroad 
company,  but  had  been  discharged.  This  evidence  had  been 
rejected  by  the  court.  This  was  held  to  be  error,  in  these 
words :  "  The  proof  offered  tends  to  show  that  the  delay  was 
caused  by  the  lawless  and  irresistible  violence  of  the  discharged 
brakemen  and  others  acting  with  them.  These  men,  at  the 
time  of  this  lawlessness,  were  no  longer  employes  of  the  com- 
pany. The  case  supposed  is  not  distinguishable  iu  principle 
from  the  assault  of  a  mob  of  strangers."  Farther  on  it  is  said  : 
"  For  delay  resulting  solely  from  the  lawless  violence  of  men 
not  in  the  employment  of  the  company,  the  company  is  not 
responsible,  even  though  the  men  whose  violence  caused  the 
delay  had,  but  a  short  time  before,  been  employed  by  the  com- 
pany."^ 

§  315.  Again,  in  an  Indiana  case,*  in  an  action  for  loss  by 

1  Page  208.  *  Pittsburgh,     Cincinnati,    and    St, 

2  84  111.  36.  Louis  R.  R.  Co.  v.  Hallowell,  65  Ind. 

3  To  this  Walker,  Craig,  and  Schol-  188. 
field,  JJ.,  dissent. 

237 


8  316.1  BILLS   OF   LADING.  [CIIAP.  XXII. 

delay  in  the  carriage  of  live  stock,  the  defendant  set  np  in  his 
answer  "  that  such  delay  was  not  caused  hy  defendant  or  its 
a£;:ents,  but  solely  by  reason  of  the  fact  that,  though  the  de- 
fendant was  prepared  to  receive  and  carry  the  goods,  an  armed 
multitude,  against  the  laws  of  the  State,  wdiich  neither  the 
defendant  nor  the  civil  authorities  were  able  to  control,  by  force 
and  arms  drove  away  the  engineers  and  firemen  operating  de- 
fendant's cars  and  thus  prevented  the  forwarding  of  plaintiff's 
goods."  This  was  held  on  demurred  to  be  a  sufficient  answer. 
The  question  whether  the  strikers  were  or  were  not  in  the 
employ  of  the  company,  was  somewhat  summarily  disposed  of. 
The  replication  of  the  plaintiff,  while  claiming  that  the  alleged 
insurrection  was  composed  solely  of  the  employes  of  the  de- 
fendant, had  set  forth  that  on  account  of  an  unjust  reduction 
of  wages  these  "  had  refused  to  continue  in  the  defendant's 
emplo3\"  This  was  held  by  a  majority  of  the  court  to  be 
insufficient  as  a  reply,  since  it  admitted  the  fact  that  the  rioters 
were  not  in  the  company's  service;  but  one  of  the  judges  dis- 
sented, holding  that  tbis  reply  was  sufficient  and  that  it  raised 
a  question  of  fact  which  should  be  submitted  to  a  jurj-,  namely, 
whether  the  rioters  were  or  were  not  employes  of  the  defend- 
ant.^ This  case  is  affirmed  in  a  3'et  more  recent  case  in  the 
same  State^  and  the  law  has  again  been  similarly  stated  by  the 
Supreme  Court  of  Illinois.^ 

§  316.  Two  cases  of  loss  by  strikes  have- come  before  the 
Circuit  Courts  of  the  United  States.  In  Wertheimer  v.  Penn- 
sylvania E..  E,.  Co.,^the  bill  of  lading  provided  that  the  carrier 
was  not  to  be  liable  for  "  loss  or  damage  by  fire,  unless  it  could 
be  shown  that  such  loss  or  damaore  occurred  throuo-h  the  negli- 
genceor  default  of  the  agents  of  the  company."  On  the  arrival 
of  the  goods  at  Pittsburgh  a  mob  seized  upon  the  car  containing 

^  Page  195.  been   discharged,    and    -who    resumed 

^  Lake  Shore  and  Michigan  South-  -work  at  the  close  of  the  strike.     Page 

■  ern  Ptv.  Co.  v.  Bennett,  89  Ind.  457.  468,  p.  12. 

Here  the  question  of  the  composition  ^  Indianapolis  and  St.  Louis  R.  R. 

of  the  mob  does   not   seem   to   have  Co.  v.  Juntgen,  10  111.  App.  295. 

been  closely  inquired. into.     In  fact,  it  *  17  Blatcdi.    421;   S.    C.    reported 

appears  that  a  part  of  the  mob  were  Lawson  on  Contracts  of  Carriers,   p. 

the  employes  of  the  road,  who  had  not  416. 
288 


CHAP.  XXII.]  EXCEPTIONS.  [§  317. 

the  goods  and  ultimately  set  fire  to  and  destroyed  them.  It 
was  held  that  these  facts  did  not  prove  negligence  and  that  in 
the  absence  of  such  proof,  the  defendant  was  not  liable.  The 
goods  for  the  loss  of  which  suit  was  brought  in  Hall  v.  Penn- 
sylvania R.  R.  Co.,*  were  destroyed  at  the  same  place  and  under 
the  same  circumstances.  Here  the  bill  of  lading  excepted  "  loss 
or  damage  on  any  article  or  property  whatever  by  fire  or  other 
casualty  while  in  transit  or  while  in  depots  of  places  of  trans- 
shipment," and  the  circuit  Justice  (McKenna)  said, "  Upon  the 
whole,  I  am  of  opinion  and  so  find,  that  the  loss  complained  of 
was  caused  by  fire  while  the  plaintiff"s  goods  were  in  transit  by 
the  defendant,  within  the  meaning  of  the  exception  in  the  bill 
of  lading ;  that  the  defendant  is  not  shown  to  have  been  guilty 
of  any  negligence  by  which  the  efficiency  of  the  exception  is  in 
any  wise  impaired,  and  hence  that  the  plaintiff:'  is  not  entitled 
to  recover." 

In  a  recent  ca-se  in  New  York,  it  was  decided  that  a  common 
carrier  by  railroad  which  uses  reasonable  means  to  move  its 
trains,  is  not  liable  for  delay  in  forwarding  goods  caused  by  a 
riotous  strike  of  its  own  employes.*^ 

In  the  English  case  of  Stephens  v.  Harris,  where  a  claim  was 
made  for  demurrage,  it  was  held  that  the  term  "  strike"  must  be 
used  in  the  ordinary  sense  of  strike  against  employers  and  that 
the  abandonment  of  work  by  miners  through  fear  of  cholera  is 
not  within  the  exception  "  hands  striking  work"  contained  in 
a  charter  party. ^ 

§  317.  The  necessities  of  the  trade  in  certain  ports  require 
that  the  goods  be  transferred  from  the  vessel  in  which  they 
have  been  carried  and  be  landed  in  boats,  barges,  or  lighters. 
The  best  opinion  would  seem  to  be  that  no  greater  liability 
exists  when  the  goods  are  in  such  boats  than  when  in  the  hold 
of  the  ship.''  Nevertheless,  the  phrase  "risk  of  boats"  is  some- 
times added  to  the  exceptions  of  the  bill  of  lading. 

In  Johnston  v.  Eenson,Hhe  expression  used  was  "risk  of 

'  14  Phila.    414;     S.  C.    37  Legal  »  56  L.  J.  Q.  B.  D.,  516. 

Intelligencer,  64;  Lawson  on  Contracts  *  Opinion  of  Burroughs,  J.,  Jobn- 

of  Carriers,  p.  419.  ston  v.  Benson,  4  Moore,  90  ;  Leggett 

2  Little  V.  Fargo,  50  N.  Y.  Supm.  on  Bills  of  Lading,  p.  218. 

Ct.  233.  5  gy^pfd^ 

239 


§  319.]  BILLS   OF   LADING.  [CIIAP.  XXII. 

boats  so  far  as  ships  are  liable  thereto"  and  the  loss  was  by 
the  capsizing  of  shallop  in  conveying  goods  to  the  shore.  It 
was  held  that  the  ship-owner  was  protected  from  such  perils  as 
were  not  within  his  control  and  that  the  loss  in  question  was 
within  the  exception. 

Mr.  Leo-ffctt  cites  the  following  case  decided  in  Calcutta. 
The  bill  of  lading  provided  that  the  goods  on  arrival  at  their 
port  of  destination  were  to  be  delivered  into  the  receiving  ship 
to  be  landed  at  the  consignee's  expense,  the  ship-owner's  liability 
ceasing  as  soon  as  they  were  delivered  from  the  shijj's  tackle. 
When  the  goods  arriv^ed  in  port,  the  consignee  had  no  boats 
ready  to  take  delivery  of  his  goods  and  they  were  put  into 
other  boats,  one  of  which  was  swamped  through  the  negligence 
of  the  boatmen  and  the  goods  in  it  were  damaged.  The  ship- 
owner was  held  to  be  exonerated  unless  it  had  been  shown  that 
he  had  failed  to  take  reasonable  and  proper  care  in  the  selection 
of  the  boats.  ^ 

§  318.  In  ]^ottebohn  v.  Richter,^  a  vessel  was  to  load  a  cargo 
from  the  shore  by  the  ship's  boat  and  crew,  "at  shi[)'s  risk." 
Part  of  the  cargo  was  lost  while  on  the  boat  and  before  it  was 
loaded  on  the  vessel,  through  one  of  the  perils  excepted  by  the 
charter  party.  The  court  held  that  the  expression  "  at  ship's 
risk"  did  not  mean  at  the  absolute  risk  of  the  ship-owners,  but 
at  such  risk  as  would  attach  if  the  goods  had  been  loaded  on 
board. 

§  319.  "Loss  by  robbery"  was  not  included  within  the  common 
law  exceptions.  Prior  to  the  reign  of  Elizabeth,  it  would  seem 
that  the  reverse  was  true;  but  in  that  commercial  reign  the  doc- 
trine of  the  common  carrier's  insurance  of  the  o-oods  carried  was 
fully  established  and  it  was  then  said  "  if  the  carrier  be  robbed 
of  the  goods  delivered  to  him,  he  shall  answer  for  the  value  of 
them. "3  Exceptions  such  as  these  under  consideration  are  there- 
fore usually  added  to  the  bill  of  lading.  They  are,  however, 
to  be  construed  strictly  and  most  favorably  to  the  shipper.* 
The  term  "  robbers"  means  loss  by  violence.      Mer-e  removal 

'  Bullock  V.  Toay  Aung,  24  Cal.  W.  Abr.  2  ;  cited  Jones  on  Bailments,  p. 

H.  C.  R.  74.  103. 

2  L.  R.  18,  Q.  B.  D.  63.  *  Taylor  v.   Liverpool,   etc.,   S.    S. 

3  1    Inst.  89,  a;  Mo.  462;    1   Ro.  Co.,  43  L.  J.  Q.  B.  205. 

240 


CHAP.  XXII.]  EXCEPTIONS.  [§  320. 

without  force  is  not  within  the  meaning  of  the  exception.  Thus, 
where  an  action  was  brought  to  recover  the  value  of  a  box  of 
gold  dust,  forming  part  of  a  consignment  from  Panama  to 
London,  under  a  bill  of  lading  excepting  "  robbers,"  the  box 
having  been  secretly  stolen  from  the  railway  truck  between 
Southampton  and  London,  it  was  held  that  the  carrier  was  not 
relieved  by  the  exception.^  Where  a  carrier  received  a  parcel  ot 
notes  to  be  carried  from  London  to  Dover,  under  a  contract  to 
deliver  them  next  day,  "  fire  and  robbery"  excepted  and  the 
parcel  was  deposited  by  the  defendants  in  a  desk  in  their  office 
in  London  and  was  afterwards  missing,  it  was  held  that  this 
was  not  a  loss  within  the  exceptions  of  the  contract.^ 

§  320.  There  is  a  conflict  of  authority  as  to  whether  the 
term  "thieves"  is  restricted  to  theft  by  parties  who  are  not 
directly  connected  with  the  ship  or  will  likewise  exempt  the 
carrier  from  liability  on  account  of  a  theft  committed  by  one 
of  the  crew  or  by  a  passenger.  In  Taylor  v.  Liverpool,  etc., 
S.  S.  Co. ,3  diamonds  were  being  conveyed  from  Liverpool  to 
New  York  and  were  stolen  from  the  ship  either  on  the  voyage 
or  after  her  arrival  in  port.  There  was  no  evidence  to  show 
whether  they  were  stolen  by  one  of  the  crew,  by  a  passenger, 
or  by  some  person  from  the  shore.  The  court  was  of  opinion 
that  as  it  did  not  appear  that  the  theft  was  not  committed  by 
one  of  the  crew,  the  carrier  had  failed  to  show  that  the  loss 
came  within  the  exception  and  was  liable.  In  Spinetti  v.  Atlas 
S.  S.  Co.,*  this  case  is  disapproved.  Here  the  facts  tended  to 
show  that  the  loss  was  by  the  theft  of  the  purser.  The  court 
carefully  reviewed  the  ground  taken  by  the  English  bench  and 
held,  two  justices  dissenting,  that  the  theft  was  within  the 
meaning  of  the  exception.  In  both  cases  the  reasons  for  the 
decisions  rendered,  were  found  in  the  cases  defining  similar  ex- 
pressions in  policies  of  insurance.  The  weight  of  American 
authority  would  seem  to  sustain  the  view  taken  by  the  New 
York  court." 

•  De  Rotschild  v.  Royal  Mail  Stm.  L.  J.  Q.  B.  205 ;  22  W.  R.  752  ;  30 

Co.,  21  L.  J.  Ex.  273;  S.  C.  7  Exch.  L.  T.  N.  S.  714. 

734;   14  Eng.  L.  &  Eq.  327.  *  80  N.  Y.  71  ;    S.  C.  14  Hun  (N. 

2  Latham  v.  Staubury,  3  Stark.  143.  Y.),  100. 

'  9  L.  R.  Q.  B.  C.  546  ;    S.  C.  43  ^  Atlantic   Ins.  Co.    v.    Storrow,   5 

16     .  241 


I  321.]  BILLS   OF   LADING.  [CIIAP.  XXII. 

§  321.  The  exception  "  rust"  is  frequently  inserted  in  the 
bill.  Like  leakage  and  breakage  it  has  reference  to  a  direct 
injury  to  the  goods.  It  will  not  cover  an  indirect  injury  to 
them  from  the  rusting  of  other  goods.^  So,  too,  the  excep- 
tion is  no  protection  where  the  rust  is  due  to  negligence  or 
unskilfulness  in  stowing.^  In  "The  Martha"^  it  wan  shown 
that  iron  was  taken  on  board  in  dry  weather,  was  not  ex- 
posed to  the  access  of  water,  but  was  well  stowed,  and  that  the 
ship  came  in  tight  and  dry.  It  was  held  that  this  was  not 
enough  to  relieve  the  carrier  from  responsibility  for  the  rusting 
of  the  iron,  but  that  he  must  show  that  the  damage  existed 
when  the  cargo  was  taken  on  board.  Whether  the  bill  of 
lading  in  this  case  contained  the  exception  under  considera- 
tion, does  not  appear.  The  exception  does  not  cover  loss  by 
such  chemical  precipitates  as  are  not  properly  rust  and  are  not 
produced  in  the  same  way.  Thus,  iron  bars  were  shipped  at 
London  for  Calcutta  and  copperas  was  stowed  in  such  close 
proximity  to  them  that  on  arrival  the  bars  appeared  coated 
with  a  substance  which  analysis  showed  to  be  not  ordinary 
rust,  but  sulphate  of  iron  or  copperas.  It  was  here  said  that 
the  loss  was  not  occasioned  by  rust  within  the  meaning  of  the 
exception,  but  by  negligent  stowage.*  The  mere  fact  of  the 
existence  in  the  cargo  of  an  article  likely  to  cause  rust  will  not, 

Pai<Te  (N.  Y.),  285;  American  Ins.  officials.  It  was  nevertheless  held  that 
Co.  V.  Bryan,  1  Hill  (N.  Y.),  25  ;  S.  the  carrier  was  liable  for  the  loss. 
C.  26  Wend.  (N.  Y.)  563,  in  error;  Where  money  is  stolen  from  a  car- 
Parsons  on  Marine  Insurance,  ch.  xvii.  rier,  under  such  a  state  of  affairs  as 
section  v.,  and  notes  (cases  cited).  will  exonerate  him  from  liability  for 
In  Schieff"elin  v.  Harvey,  6  Johns,  the  loss,  the  carrier  will  nevertheless 
(N.  Y.),  170,  goods  had  been  shipped  be  answerable  for  the  money  in  indebi- 
from  New  York  to  London.  On  arrival  tatus  assumpsit,  if  he  has  recovered  it 
it  was  found  that  the  goods  could  not  from  the  thief. 

be  landed  because  of  the  law,  and  the  St.  John  v.  Express  Co.,  1  Woods's 

consignees  agreed  with  the  master  of  C.  C.  Rep.  612. 

the  ship  that  the  goods  should  remain  •  Thrift  v.  Youle,  supra. 

on  board  and  be  returned  to  the  ship-  ^  Dedekaur  v.  Vose,  3  Blatch.  44  ; 

pers  at  their  (the  shippers')  risk,  and  The  Nith,  36  Fed.  Rep.  383. 

an  indorsement  to  that  effect  was  made  *  Olcott's  Adm.  140. 

upon  the  bill  of  lading.      The  goods  *  Mackinnon    v.  Taylor,  Com.   Ca. 

were  stolen  or  embezzled  probably  by  514. 
certain  of  the   English   custom-house 
242 


CHAP.  XXII.]  EXCEPTIONS.  [§  322. 

however,  defeat  the  exception.  Where  salt  and  iron  had  been 
carried  at  opposite  ends  of  the  same  vessel,  but  no  further 
alleged  negligence  on  the  part  of  the  carrier  was  shown,  the 
carrier  was  held  to  be  discharged  under  a  bill  of  lading  which 
contained  the  exception.^ 

A  case  interesting  in  this  connection  is  commented  upon  by 
the  author  of  Contracts  of  Carriers.^  The  exceptions  in  the 
bill  of  lading  included  "  leakage,  breakage  and  rust."  It  was 
held  that  this  would  excuse  rust  caused  by  the  sweat  or  mois- 
ture of  the  place  where  the  goods  were  stowed,  but  would  not 
excuse  rust  arising  from  the  entrance  of  water  through  an  in- 
sufficient ceiling  in  the  hold,  since  this  last  could  have  been 
prevented  by  the  exercise  of  proper  care  and  diligence. 

§  322.  By  "  sweat,"  or  "  sweating  of  the  hold,"  js  meant 
that  damage  done  to  goods  in  transit  by  the  dampness  which 
invariably,  in  greater  or  less  degree,  pervades  ships.  In  Men- 
delsohn V.  The  Louisiana'  the  exception  is  construed.  The 
Court  said  :  "The  evidence  is  entirely  satisfactory  to  my  mind 
that  the  damage  was  not  caused  by  any  carelessness  or  negli- 
gence of  the  master  or  seamen,  but  was  caused  by  the  sweating 
or  humidity  unavoidable  in  the  hold  of  an  iron  ship  loaded  in 
Liverpool  in  the  winter  or  early  spring  and  making  a  voyage 
to  New  Orleans  through   the   Gulf  in  the  warm  weather  of 

spring Such  a  cause  of  damage  is  within  the  exception 

— sweating."  The  Court  proceeds  to  say,  that  such  a  loss  is 
also  within  the  exception,  "  perils  of  navigation."  In  other 
cases  it  has  been  repeatedly  held  that  losses  by  sweating,  if  not 
unreasonable  in  amount  and  if  unassociated  with  negligence 
on  the  carrier's  part,  are  included  within  the  general  exception, 
"perils  of  the   sea,"   and  kindred  phrases.*     The  question  of 

^  Krohn  v.  Nurse,  5  Buch.  (Cape  of  Baxter  v.  Leland,  1  Abbot  Adm.  348, 

Good  Hope)  85.  it  is  intimated  that  when  sweating  is 

2  Richards   v.    Hansen,   Lawson  on  the     ordinary    accompaniment    of    a 

Contracts  of  Carriers,  p.  401.  voyage     from     southern    to    northern 

'  3  Woods's  Rep.  46.  waters,  and  not  the  result  of  tempes- 

*  Star  of  Hope,  17  Wallace,  651  ;  tuous  weather,  it  does  not  fall  under 
McKinlay  v.  Morrish,  21  Howard,  343  ;  "  perils  of  the  sea."  The  court,  how- 
Clark  V.  Barnwell,  12  ib.  272;  Lamb  ever,  do  not  seem  to  insist  upon  the 
V.    Parkman,    1     Sprague,    343.       In  distinction,  inasmuch  as  in  the  case  in 

243 


^  322.]  BILLS   OF   LADING.  [CHAP.  XXII. 

negligence  usually  arises  in  this  connection  upon  the  allegation 
of°faulty  stowage.^  Thus,  in  Puturzo  v.  Compagnie  Frangaise, 
macaroni  shipped  under  a  bill  of  lading  exempting  from  lia- 
bility for  damage  from  other  goods  by  sweating  or  otherwise, 
was  injured  by  the  fumes  of  decaying  fruit  stowed  near  it  in 
the  same  compartment.     The  Court  held  that  the  vessel  was 

liable. 

There  are  several  cases  in  the  books  to  the  effect  that  proof 
that  the  stowage  was  according  to  the  usage  of  the  trade  rebuts 
the  presumption  of  negligence.^ 

hand  they  say  that  the  carrier  is  to  be  v.  Leland,  supra;   The  Keystone,  31 

held  liable  only  so  far  as  the  damage  is  Fed.  Rep.  412  ;    The  Maggie  M,,  30 

traceable  to  faulty  stowage.  ib.  692;  31  ib.  611. 

1  The  Star  of  Hope,  supra ;  Baxter        *  Lamb  v.  Parkman,  supra. 

244 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.       [§  323. 


CHAPTER  XXIII. 

BILLS  OF  LADING  FOR  THROUGH  CARRIAGE. 


Carriers  may  contract  to  carry  beyond 
their  own  line,  §  323. 

Carriers  other  than  the  first,  are  agents 
of  the  latter,  §  324. 

The  first  carrier  continues  liable  to 
final  destination,  §  325. 

First  carrier  may,  by  contract,  limit 
his  liability  to  his  own  line,  except 
for  negligence,  §  326. 

Contract  to  carry  beyond  the  carrier's 
own  line  may  be  expressed  or  im- 
plied, §  327. 

The  receipt  of  goods  marked  to  be  de- 
livered   beyond  receiving  carrier's 
own  line,  §  328. 
Receipt  of  such  goods  by  one  of  an 

association  of  carriers,  §  329. 
General  statement  of  the  rule,  §  330. 


What  have  been  held  to  be  "  through" 

contracts,  §§  331,  332. 
Effect  of  contract  to  "  forward,"  §  333. 
Duties  of  the  carrier  under  such  a  bill, 

§334. 
Forwarder  must   follow   shipper's  in- 
structions, §  335. 
In  the  absence  of  instructions,  carrier 
must  forward  by  the  usual  convey- 
ance, §  336. 
Carrier  contracting  "to  forward"    is 
liable  to  the  end  of  the  route,  unless 
otherwise  stipulated,  §  337. 
Carrier  cannot  escape  his  liability  by 
calling  himself  a  "  forwarder  only," 
§  338. 
Liability  may,  by  contract,  be  limited 

to  carrier's  own  line,  §§  339,  340. 
The  rule  in  England,  §  341. 


§  323.  A  COMMON  carrier  is  not  by  law  obliged  to  carry 
goods  beyond  the  terminus  of  his  own  line.^  He  may,  however, 
bind  himself  by  special  contract  not  only  to  do  this,  but  also 
to  receive  freight  at  points  not  upon  his  route.*  The  power  to 
so  contract,  if  not  especially  granted,  is  essential  to  his  business 
and  incidental  thereto.  No  arrangement  with  a  connecting  line 
is  necessary  to  such  a  contract.^ 

1  B.  &  0.  R.  R.  Co.  V.  Green,  25     v.  Berry,  18  ib.  272 ;  Wyman  v.  C.  & 

]yi^^  72.  -Al.  R.  R.  Co.,  4  Mo.  App.  Rep.  35 ; 

zNoyes  v.  R.  &  B.  R.  R.  Co.,  27     Schroeder  v.  H.  R.  R.  R.  Co.,  5  Duer 


Vt.  110. 

3  Perkins  v.  P.  S.  &  R.  R.  Co.,  47 
Me.  573  ;  B.  &  P.  S.  B.  Co.  v.  Brown, 
4  P.  F.  Sm.  (Pa.)  77 ;  P.  R.  R.  Co. 


(N.Y.  Supr.  Ct.),  55;  M.  C.  O.  Co. 
V.  H.  St.  J.  R.  R.  Co.,  35  Mo.  84; 
Wheeler  v.  S.  F.  &  A.  R.  R.  Co.,  31 
Cal.  46 ;  Noyes  v.  R.  &  B.  R.  R. 
245 


§  325.]  BILLS   OF   LADING.  [CHAP.  XXIII. 

§  324.  Where  a  carrier  makes  a  through  contract,  the  ser- 
vice done  by  the  connecting  carriers  on  the  line  is  deemed  to 
be  done  at  his  request  and  the  latter  act  as  his  agents.  Their 
acts  are  his  acts  and  if  there  is  a  breach  of  the  contract,  the 
shipper  has  an  action  against  him.*  The  carrier  so  undertaking 
is  liable  for  the  negligence  of  succeeding  carriers  on  the  line  of 
transportation  whom  he  employs,  to  the  same  extent  that  he  is 
liable  for  that  of  his  own  immediate  employes.^  He  has  no 
authority  to  constitute  another  person  or  corporation  the  agent 
of  his  consignor  or  consignee,  unless  that  power  is  given  to  him 
by  the  contract.^  He  may  employ  an  agency,  but  it  must  be 
subordinate  to  him  and  not  to  the  shipper,  who  neither  em- 
ploys it,  pays  it,  nor  has  any  right  to  interfere  with  it.  Its  acts 
become  his  acts,  because  done  in  his  service  and  by  his  direc- 
tion. Therefore,  where  an  express  company  engaged  to  trans- 
port packages,  etc.,  from  one  point  to  another,  sends  its 
messenger  in  charge  of  them  on  the  car  set  apart  for  its  use  by 
the  railroad  company  employed  to  perform  the  service,  the 
latter  company  becomes  the  agent  of  the  former.* 

§  325.  The  rule  may  then  be  stated,  that  when  a  carrier  con- 
tracts to  deliver  to  a  point  beyond  his  own  terminus,  his  liability 
as  a  common  carrier  is  not  confined  to  his  own  line,  but 
continues    to    final    destination.^      The    carrier    cannot    free 

Co.,  27  Vt.  110 ;    R.  R.  Co.  v.  Pratt,  "  Union  Ex.  Co.  v.  Slioop,  4  Norris 

22  Wall.  123;  Bissell  v.  Michigan  R.  (Pa.),  325. 

R.  Co.,  22  N.  Y.  258  ;  Cutts  v.  Brain-  *  Bank  of  Kentucky  v.  Adams  Ex, 

erd,  42  Vt.  566  ;    Buffett  v.  T.  &  B.  Co.,  3  Otto,  174. 

R.  R.  Co.,  40  N.  Y.  168;  Root  v.G.  ^  Mann   v.   Bmchard,  7  Am.  Law 

W.  Ry.  Co.,  45  ib.  524 ;  Burtis  v.  B.  Reg.  (N.  S.)  702  ;  Krender  v.  Wool- 

&  St.  L.  R.  R.  Co.,  24  ib.  269  ;  Hill  cott,  1  Hilton  (N.  1^),  223  ;  B.  &  P. 

Mfg.    Co.   V.  B.  &  L.  Ry.  Co.,   104  S.  Co.  v.  Brown,  4  P.  F.  Sm.  (52  Pa.) 

Mass.  122;  Feital  r.  Middlesex  R.  R.  77;    Palmer   v.  Holland,  51    N.    Y. 

Co.,  109  ib.  398  ;  Morse  v.  Brainerd,  416;  DeVilliersy.  Schooner  John  Bell, 

41  Vt.  550;  R.  R.  Co.  v.  Mfg.  Co.,  6  La.  Ann.  Rep.  544;  Bussey  v.  M. 

16  Wall.  324  ;  E.  &  R.  Co.  v.  Andro-  &  L.  R.  R.  Co.,  4  McCrary  (D.  C), 

scoggin   Mills,    22    Ib.    594;    contra,  405;   Gordon  v.  G.   W.   Ry.   Co.,  34 

Converse  v.  N.  &  N.  Y.  T.  Co.,  33  U.  C.  C.  B.  224  ;  Peet  v.  C.  &  N.W. 

Conn.  166.  Ry.  Co.,  19  Wis.  118  ;  Moore  u.  Evans, 

'  Monell  V.  N.  C.  R.   R.   Co.,   67  14  Barb.  (N.  Y.)  524  ;  Bryan  v.  M.  P. 

Barb.  (N.  Y.)  531.  R.  R.  Co.,  11  Bush  (Ky.),  597  ;  111.  C. 

«  Newell  V.  Smith,  49  Vt.  255.  R.  R.  Co.  v.  Johnson,   34  111.  389; 

246 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.        [§  326. 

himself  from  liability  for  delay  in  forwarding,  or  failure  to  for- 
ward, by  pleading  increased  expense  of  carriage  either  on 
account  of  increased  freight  demanded  by  the  connecting  car- 
riers, or  on  account  of  unforeseen  difficulty  of  transportation. ^ 

§  326.    The  right   to   make  a  contract  for  a  through  rate 
beyond  the  terminus  of  his  line  carries  with  it  also  the  right  to 
limit  the  liability  on  freight  so  transported  also  beyond  the 
iirst  carrier's  line.^     So  where  a  through  contract  contained  a 
clause  exempting  the  first .  carrier  from   liability  for  loss  by 
fire,  the  exemption  was  held  to  apply  to  the  whole  route  and 
he  was  held  not  liable  for  a  loss  by  fire  on  the  line  of  a  con- 
necting  carrier.^     The   first   carrier  cannot,  however,  exempt 
himseff  from  losses  arising  from  negligence  while  goods  are  not 
upon  his  own  line.     This  is  as  much  against  public  policy  as  if 
the  transportation  were  all  upon  his  own  road." 
Clyde  r.  Hubbard,  7  Norris  (Pa.), 358;     Fox    v.   Boston,   etc.,   Ry.    Co.,    148 
Hill  Mfg.  Co.  V.  Boston  &  L.  R.  Co.,     Mass.  220. 

104  Masl  122  ;   Cutts  v.  Brainard,  42         ^  Condict  v.  G.  T.  R.  R.  Co.,  54  N. 
Vt.   566  -,    Newell    v.    Smith,   49    ib.     Y.  500. 

255;    R.    R.   Co.  V.   Pratt,    22  Wall.         '  Watts  v.  The  Saxon,  11  La.  Ann. 
123  ';  Lock  Co.  v.  R.  R.  Co.,  48  N.  H.     Rep.  43. 

339 ;    Baltimore    Steamboat    Co.    v.        »  E.   &  C.   R.    R.    Co.    v.  Andro- 

Brown,  54  Pa.  St.  77;  R.  R.  Co.  v.     scoggin  Mills  (U.  S.  S.  C),  32  Leg. 

Androscoggin   Mills,    22    Wall.    594 ;     Int.  355 ;   Directors  B.  &  E.  Ry.  Co. 

Collins  V.   B.  &  E.   Ry.  Co.,  11  Ex.     v.  Collins,  7  H.  L.  Cas.  194;  T.  P.  & 

790  ;   Coxon  v.  G.  W.  R.  Co.,  5  H.     W.   R.   R.   Co.   v.  Merriman,   52    111. 

&  N.  274  ;  Scothorn  v.  S.  S.  Ry.  Co.,     123.     Where  there  was  a  contract  tor 

8  Ex.  341  ;  Crouch  v.  G.  W.  R.  Co.,     freight,   and  the  bill  of  lading  said: 

2  H.  &  N.   491  ;    Muscharap  v.  Lan-     "  The  responsibility  of  this  company 

caster  R.,   8   M.  &  W.   421  ;    Wilby     as  a  common  carrier  under  this  bill  of 

V.  W.  C.'  R.  Co.,  2  H.  &  N.   703;     lading  ....  to  terminate  when  (the 

Root  v.  G.  W.  R.  R.  Co.,  45  N.  Y.     goods  are)  unloaded  from  the  cars  at 

525;   G.  W.  R.  R.  Co.  V.  Crouch,  3     the  place  of  delivery,"  and  it  appeared 

H.  &N.' 183;  Watts  y.  The  Saxon,  11     that   through   freight   was   never   un- 

La.  Ann.  Rep.  43  ;  Weed  v.  S.  &  S.     loaded  by  the  company  at  its  terminus, 

R    R.   Co.     19  Wend.  (N.  Y.)   534;     but  proceeded  on  to  its  destination  in 

Mytton  1-.  Midland  Ry.  Co.,  4  H.  &    the  cars  in  which  it  was  received ;  and 

N    615  ;  Coxon  v.  G.  W.  Ry.  Co.,  5    an  action  for  non-delivery  held  that 

ib.  274';   Collins  V.  Bristol,  etc.,   Ry.     upon  their  own  showing  the  company 

Co     llExch.  790;   iH.  &N.517;7     were   liable    beyond    their   terminus. 

H.  of  L.  Cases,   194  ;  Swift   v.  Pac.     T.  P.  &  W.  R.  R.  Co.  v.  Merriman,  52 

Mail,  etc.,  Co.,   106  N.  Y.  206;  Mo.     111.  123.  ^    .   ,,    „    o 

Pac    Ry.  Co.  v.  Young,  25  Neb.  651  ;         ^  C.  H.  &  D.  and  D.  &  M.  B.  R. 

247 


328.] 


BILLS    OF   LADING. 


[chap.  XXIII. 


§  327.  The  contract  to  carry  beyond  the  terminus  of  the  line 
may  be  either  expressed  or  implied.*  Whether  or  not  such  a 
contract  was  made  is  a  question  of  fact  for  the  jury  to  decide 
from  all  the  circumstances  of  the  case.^  The  bill  of  lading 
may  be  the  proof  of  the  contract,  either  alone  or  in  connec- 
tion with  other  evidence.^  The  receipt  by  the  first  carrier  of 
freight  for  the  entire  distance,*  statements  of  the  agents  of  the 
carrier  made  when  the  bill  of  lading  was  given,  or  any  under- 
standing between  the  parties  at  the  time  the  goods  were 
shipped,  may  all  be  evidence.* 

§  328.  Upon  the  question  of  the  mere  receipt  of  goods  marked 
for  a  destination  which  is  beyond  the  terminus  of  his  own  route 
and  to  reach  which  it  is  necessary  to  pass  over  other  lines  than 
those  of  the  carrier  to  whom  the  goods  are  delivered,  the  rule 
in  regard  to  the  latter's  liability  for  loss  occurring  on  other 
lines  than  his  own  is  different  in  the  several  States.  In  the 
United  States  Courts,^  in  Pennsylvania,^  New  York,^  Maine,^ 


Co.  V.  Pontius,  19  Ohio  St.  221  ;  Con- 
diet  i;.  G.  T.  R.  Co.,  54  N.  Y.  500. 

'  P.  &  Pt.  R.  R.  Co.  V.  Ramsey,  8 
Norris  (Pa.),  474. 

2  Bryan  v.  M.  &  P.  R.  R.,  11  Bush 
(Ky.),  $97;  111.  Cent.  R.  R.  Co.  v. 
Johnson,  34  111.  389 ;  Clyde  v.  Hub- 
bard, 7  Norris  (Pa.),  358;  Crawford 
V.  S.  R.  Assn.,  51  Miss.  222;  Morse 
V.  Brainerd,  8  Am.  Law  Res.  N.  S. 
604  ;  St.  John  v.  Express  Co.,  1  Wood 
(U.  S.  C.  C),  612. 

3  Clyde  V.  Hubbard,  7  Norris  (Pa.), 
358  ;  R.  R.  Co.  V.  Pratt,  22  Wall.  123 ; 
E.  Tenn.  R.  R.  Co.  v.  Rogers,  6  Heisk. 
(Tenn.)  143. 

*  Weed  V.  S.  R.  R.  Co.,  19  Wed. 
534 ;  Candee  v.  P.  R.  R.  Co.,  21  Wis. 
682  ;  St.  John  v.  Exp.  Co.,  1  Woods's 
Rep.  612;  R.  R.  Co.  v.  Androscoggin 
Mills,  22  Wall.  594. 

^  St.  John  V.  Exp.  Co.,  1  Woods, 


612;  Robinson  v.  M.  D.  T.  Co.,  45 
Iowa,  470;  Root  v.  G.  W.  R.  Co., 
45  N.  Y.  524;  R.  R.  Co.  v.  Pratt, 
22  Wall.  123;  Hill  Mfg.  Co.  v.  B.  L. 
R.  R.  Co.,  104  Mass.  122;  Quimby 
V.  Vanderbilt,  17  N.  Y.  306;  Coal 
and  Oil  Co.  v.  H.  &  St.  J.  R.  R. 
Co.,  35  Mo.  84  ;  P.  &  R.  R.  Co.  v. 
Berry,  18  P.  F.  Sm.  (Pa.)  272 ;  Rome 
R.  R.  V.  Sloan,  39  Ga.  636. 

6  Railroad  Co.  v.  Pratt,  22  Wall. 
129;  R.  R.  Co.  V.  Mfg.  Co.,  16  ib. 
318;  contra,  St.  John  v.  The  Exp. 
Co.,  1  Woods's  Rep.  (C.  C.)  612. 

"  Jenneson  i\  C.  &  A.  R.  R.  Co.,  5 
Clark  (D.C.  of  Phila.),  409  ;  Mullarkey 
V.  P.  W.  &  B.  R.  R.  Co.,  9  Phila.  (D. 
C.  of  Phila.)  114;  Clyde  v.  Hub- 
bard, 7  Norris  (Pa.),  358  ;  Camden  & 
A.  R.  R.  Co.  V.  Forsyth,  61  Pa.  St.  81. 

8  Isaacsen  v.  N.  Y.  C.  &  H.  R.  R. 
Co.,  25  Hun  (N.  Y.),  350  ;   Rawson 


9  Skinner  v.  Hall,  60  Me.  477;  In-  573;    Hadd  v.   U.   S.  &  E.   Express 

habitants  i;.  Hall,  61  ib.  517;  Perkins  Co.,  52  Vt.  335;   Morse  v.  Brainerd, 

V.  Portland  &  C.  R.   R.   Co.,   47  ib.  41  ib.  550. 
248 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.       [§  328. 

Vermont,^  Massachusetts,^  Maryland,^  North  Carolina,*  Con- 
necticut," Indiana,^  Missouri,^  Minnesota,^  Mississippi,^  Michi- 
gan i°and,Virginia,^Hhe  carrier  may  by  special  contract  extend 
his  liability  to  the  final  destination  ;  but  in  the  absence  ot  such 
contract  or  of  a  partnership  relation  existing  between  carriers 
on  the  line,  a  carrier  is  only  liable  for  losses  occurring  on  his 
own  line  and  is  responsible  only  for  the  safe  and  seasonable  de- 
livery of  the  goods  to  the  succeeding  carrier  m  the  direction 
of  the  transportation.  The  simple  receipt  of  goods  directed  to 
a  point  beyond  the  carrier's  route  does  not  create  a  special  con- 


V.  Holland,  59  N.  Y.  611;  Dillon  v. 
N.  Y.  &  E.  R.  R.  Co.,  1  Hilt  (N. 
YOi  231  ;  Van  Santwood  v.  St.  John, 
6  Hill  (N.  Y.),  157  ;  Barclay  v.  Clyde, 
2  E.  &  D.  Smith  (C.  P.  N.  Y.),  95; 
Irwin  V.  N.  Y.  C.  &  H.  R.  R.  Co., 
59  N.  Y.  653;   Root  v.  G.   W.   R. 
R.  Co.,  45  ib.  525;   St.  John  v.  Van 
Santwood,  25  Wendell  (N.  Y.),  660  ; 
Foy  V.  T.  &  B.   R.  R.  Co.,  24  Bart. 
(N.  Y.)  382;    Mallory  v.  Barrett,   1 
Ex.  Smith,  234  (C.   P.  of  N.  Y.); 
Smith   V.   N.  Y.    C.   R.   R.  Co.,   43 
Bart.  225 ;  Jennings  v.  Grand  Trunk 
Ry.  Co.,  52  Hun  (N.  Y.),  227. 

1  Brintnall  v.  S.  &  W.  R.  R.  Co., 
32  Vt.  665;  Cutts  v.  Brainerd,  42 
ib,  567  ;  Farmers,'  etc..  Bank  r. 
Champlain  T.  Co.,   16  ib.  52  and  18 

ib.  131. 

2  Burroughs  v.  N.  &  W.  R.  R.  Co., 
100  Mass.  26;  Pendergast  v.  Adams 
Exp.  Co.,  101  ib.  120;  Nutting  v. 
C.  R.  R.  Co.,  1  Gray  (67  Mass.), 
502;  W.  Mfg.  Co.  V.  P.  W.  R.  R. 
Co.,  113  Mass.  490;  Darling  v.  Bos- 
ton, etc.,  R.  R.,  11  Allen  (Mass.), 
295;  Crawford  v.  South.  R.  Assn., 
51  Miss.  222. 

3  B.  &  O.  R.  R.  Co.  V.  Green,  25 
Md.  72  ;  B.  &  O.  R-  R-  Co.  v.  Schu- 
macher, 29  ib.  168. 

*  Phillips  u.  N.  C.  R.  R.  Co.,  78 
N.  C.  294. 


6  Converse  v.  N.  &  N.  J.  T.  Co., 
6  Am.  Law  Reg.  N.  S.  214  (S.  C.  of 
Conn.) ;  Elmore  v.  Navgatuck  R.  R. 
Co.,  23  Conn.  457  ;  Navgatuck  R.  R. 
Co.  V.  Waterbury  Button  Co.,  24  ib. 
483;  Hood  v.  N.  Y.,  etc.,  R.  Co., 
22  ib.  502. 

6  P.  C.  &  St.  L.  R.  Co.  V.  Morton, 
61  Ind.  539  ;  U.  S.  Exp.  Co.  v.  Rush, 
24  ib.  403. 

7  Coates  v.V.S.  Exp.  Co.,  45  Mo. 
238 ;  Mo.  Coal  &  Oil  Co.  v.  H.  &  St. 
J.  R.  R.  Co.,  35  Mo.  App.  84;  Free- 
burg  Coal  Co.  V.  U.  R.  T.  Co.,  10  ib. 
596;  Barrett  *;.  I.  St.  L.  R.  R.  Co., 
9  ib.  226  ;  Schutter  o.  Adams  E.  Co., 
5  ib.  316;  Wyman  v.  C.  &  N.  R.  R. 
Co.,  4  ib.  35;  Cramer  v.  A.  M.  U.  E. 
Co.  &  M.  D.  Co.,  56  Mo.  524;  Mc- 
Carthy V.  T.  H.  &  I.  R.  R.  Co.,  9 
Mo.  App.  159  ;  Baker  v.  Mo.  Pac. 
Ry.  Co.,  19  ib.  321. 

8  Lawrence  v.  W.  St.  P.  R.  R.  Co., 
15  Minn.  390;  Ortt  v.  Minneapolis, 
etc.,  R.  Co.,  36  ib.  396. 

9  Lowenberg  v.  Jones,  56  Miss.  688; 
Crawford  v.  Southern  R.  R.  Assn.,  51 
ib.  222. 

10  D.  &  B.  C.  Ry.  Co.  V.  McKen- 
zie,  43  Mich.  609  ;  McMillan  v.  Michi- 
gan, etc.,  R.  Co.,  16  ib.  79 ;  M.  C.  R. 
Co.  y.  Burrows,  1  Law  &  Eq.  Rep.  86. 

"  McConnell  v.  Norfolk,  etc.,  R.  Co. 
(Va.),  9  Southeast  Rep.  1006. 

249 


s  329.]  BILLS   OF   LADING.  [CHAP.  XXIII. 

tract  to  carry  them  to  the  destination,  nor  does  giving  the 
shipper  a  through  rate.^  It  is  presumed  when  a  carrier  re- 
ceives goods  marked  to  a  point  beyond  its  own  line  that  he  is 
to  carry  the  goods  to  the  end  of  his  own  route,  and  from  that 
point  to  act  merely  as  a  forwarder,  to  deliver  them  to  the  suc- 
ceedino-  carrier  in  the  line  of  transportation.  If  the  second 
carrier  refuses  or  neglects  to  receive  them,  the  first  carrier  may 
store  the  goods.  The  nature  of  the  bailment  then  changes  and 
he  becomes  liable  only  as  a  warehouseman.^ 

§  329.  Where,  however,  several  carriers  are  associated  in  a 
continuous  line  of  transportation  and  in  the  course  of  business 
o-oods  are  carried  through  the  connected  lines  for  one  price, 
under  an  agreement  by  which  freight-money  is  divided  among 
the  associated  carriers  in  proportions  fixed  by  their  agreement ; 
in  short,  where  there  is  a  partnership  of  carriers,  if  the  carrier  at 
one  end  of  the  line  receives  the  goods  to  be  transported  through, 
marked  for  a  consignee  at  the  other  end  of  the  line  and  on  the 
delivery  of  the  goods  takes  pay  for  the  transportation  of  the 
o-oods  through,  the  carrier  who  receives  the  goods  is  bound  to 
carry  them,  or  see  that  they  are  carried,  to  their  final  destination 
and  is  liable  for  an  accidental  loss  happening  on  any  part  of  the 
line.3    The  latter  rule  has  been  adopted  in  England,*  Illinois,** 


'  McCarthy  v.  T.  H.  I.  R.  R.  Co.,  &  N.  R.  Co  ,  48  N.  H.  339 ;    10  Am. 

9  Mo.  Ap.   159;  Converse  v.  N.  H.  Law  Reg.  (N.  S.)  244 ;  Hill  Mfg.  Co. 

Y.   Trans.   Co.   (S.  C.  of  Conn.),   6  y.  B.  &  L.  R.  R.  Corp.,  104  Mass.  122. 

Am.  Law  Reg.   N.   S.   214  ;   Stewart  *  Muschamp  v.  L.  &  P.  R.  Ry.  Co., 

r.  T.   FI.  I.  R.  R.  Co.,  3  Fed.  Rep.  8  M.  &  W.  421  ;    E.  T.  &  Va.  R.  R. 

(U.  S.  C.  C.  Dist.  Mo.)  768.  Co.  v.  Rogers,  6  Heiskell  (Tenn.),  143. 

2  Rawson  v.    Holland,    59    N.    Y.  ^  ju,  Cent.  R.  R.  Co.  v.  Copeland, 

611.  24  111.  332;    Chicago,  etc.,  R.  Co.  v. 

'  Coates  V.  U.  S.  Express   Co.,  45  People,  56  ib.  365;  TJ.  S.  Exp.  Co.  v. 

Mo.  238  ;   Mo.  Coal  and  Oil  Co.  v.  H.  Haines,   67  ib.  137  ;    111.   Cent.  R.  R. 

&  St.  J.  R.  R.  Co.,  35  ib.   84;   Free-  Co.  v.  Cowles,  32  ib.  116;    111.  Cent, 

burg  Coal  Co.  v.  Union  Ry.  Transit  R.    R.   Co.    v.   Johnson,   34  ib.   389 ; 

Co.,   10  Mo.  App.  596  ;    Schutter  v.  111.   Cent.  R.  R.  Co.  v.  Frankenberg, 

Adams   Exp.  Co.,    5   ib.   316;    Bar-  54  ib.    88;     C.   &  M.    W.   Ry.    Co. 

rett   V.    I.    &    St.    L.    R.   R.  Co.',    9  u.  Montfort,  60  ib.  175;  Field  y.  C.  & 

Mo.  226;    Wyman  v.  C.  &  A.  R.  R.  R.  G.  R.  R.  Co.,  71  ib.  458  ;    T.  W. 

Co.,  4  Mo.  App".  35;    Cramer  d.  Am.  W.  Ry.  Co.   v.  Lockhart,  71  ib.   627; 

M.    U.    Exp.   Co.    and  M.    D.    Co.,  M.  &  St.  P.  Ry.  Co.  v.  Smith,  74  ib. 

56  Mo.  524  ;  Nashua  Lock  Co.  v.  W.  197  ;  Ohio  &  M.  R.  Co.  v.  Emrich, 
250 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.        [§  329. 

Georgia,'  Wisconsin ,*  Tennessee,^  Iowa,*  Alabama,*  Kansas,^ 
Florida,^  and  New  Hampshire,^  even  where  no  partnership 
relations  exist  between  the  carriers.  In  these  jurisdictions 
while  he  may  by  special  contract  limit  his  liability  to  his 
own  line,  yet  where  a  common  carrier  receives  goods  marked 
to  a  particular  place,  he  is  bound  prima  facie,  under  an  im- 
plied agreement  from  the  mark  or  direction,  to  deliver  at 
such  place,  though  it  be  beyond  his  own  route.  If  damage  or 
loss  occur,  the  carrier  who  received  the  goods  in  the  first  in- 
stance must  account  to  the  owner,  whether  the  loss  occurred  on 
his  own  line,  or  that  of  some  other  carrier  in  the  line  of  transit. 
The  contract  of  the  shipper  is  with  the  carrier  to  whom  he  in- 
'  trusted  the  goods.  A  fortiori,  therefore,  the  carrier  is  liable  to 
deliver  at  final  destination  when  the  agreement  to  do  so  is  ex- 
press.^ This  is  a  liability  which  arises  out  of  a  contract  which 
is  implied  from  the  receipt  of  the  goods  marked  to  a  particular 
destination.  If  the  carrier,  then,  can  show  a  uniform  usage, 
known  to  the  shipper,  to  undertake  for  its  own  line  alone  and 
if  he  received  freight  from  the  shipper  for  this  service  alone. 


24  111.  App.  245  ;  Adams  Exp.  Co.  v. 
Wilson,  81  111.  339  ;  Erie  %.  Co.  v. 
Wilcox,  84  ib.  239  ;  Merchants  Disp. 
Trans.  Co.  v.  Moore,  88  ib,  136; 
Pennsylvania  Co.  v.  Fairchild,  69  ib. 
260. 

'  Rome  R.  R.  v.  Sullivan,  25  Ga. 
228  ;  Southern  Exp.  Co.  v.  Shea,  38 
ib.  519  ;  Cohen  v.  Southern  Exp.  Co., 
45  ib.  148  ;  Mosher  v.  South.  Exp. 
Co.,  38  ib.  37 ;  Palvey  v.  Georgia  R. 
Co.,  76  ib.  597. 

2  Wahl  V.  Holt,  26  Wis.  703 ; 
Hooper  v.  C.  &  N.  AV.  Ry.  Co.,  27 
ib.  81  ;  Parmelee  v.  W.  Trans.  Co., 
26  ib.  439  ;  Congar  v.  C.  &  G.  R.  R. 
Co.,  17  ib.  477;  Hermann  v.  Jord- 
rich,  21  ib.  536  ;  Hansen  v.  Flint,  73 
ib.  346. 

3  L.  &  N.  R.  R.  Co.  V.  Campbell, 
7  Heiskell  (Tenn.),  253  ;  M.  C.  R.  R. 


Co.  V.  Stockard,  11  ib.  568  ;  E.  T.  & 
Va.  R.  R.  Co.  V.  Rogers,  6  ib.  143 ; 
Western,  etc.,  R.  R.  Co.  v.  McElwee, 
6  ib.  208  ;  Carter  v.  Peck,  4  Sneed 
(Tenn.),  203;  E.  T.  R.  R.  Co.  v. 
Nelson,  1  Cold.  (Tenn.)  272. 

*  Mulligan  v.  111.  Cent.  R.  R.  Co., 
36  Iowa,  181  ;  Augle  v.  Miss.  &  Mo. 
R.  R.  Co.,  9  ib.  487. 

5  M.  &  G.  R.  R.  Co.  V.  Copeland, 
63  Ala.  219;  Logan  v.  Mobile  Trade 
Co.,  46  ib.  514;  Alabama,  etc.,  R. 
Co.  V.  Thomas,  83  ib.  343. 

6  St.  L.,  K.  C.  N.  R.  Co.  V.  Piper, 
13  Kansas,  505. 

7  Rennet  v.  Filyaw,  1  Fla.  403. 

8  Gray  v.  Jackson,  51  N.  H.  9  ; 
Lock  Co.  V.  R.  R.,  48  ib.  339. 

9  111.  Cent.  R.  R.  Co.  V.  Johnson, 
34  111.  389. 

251 


§  331.]  BILLS   OF  LADING.  [CHAP.  XXIII. 

this   would   suffice  to  rebut  the  contract   implied   from   the 
directions.' 

§  330.  The  rule  has  been  well  stated  in  the  Georgia  cases, 
where  it  is  said  that  where  a  common  carrier  receipts  for  goods 
to  be  transported  beyond  his  terminus  he  undertakes  to  trans- 
port them  to  their  destination  by  himself  or  by  competent 
agents  and  he  will  be  liable  if  the  goods  are  lost  beyond  the 
terminus  of  his  own  line.  He  is  bound  to  deliver  them  to  the 
proper  custody  to  insure  their  safe  transportation.^ 

In  Kansas  a  carrier,  who  received  the  goods  for  transporta- 
tion beyond  his  own  terminus,  stipulated  that  he  was  to  be  liable 
only  as  forwarder.     He  was  held  liable  as  common  carrier  for  . 
the  whole  distance.^ 

§  331.  A  bill  of  lading  receipting  for  full  freight  to  the  point 
of  delivery  has  been  held  sufficient  evidence  of  a  through  contract 
between  the  two  points.*  Where  the  bill  of  lading  contained 
the  clause  "  for  transporting  the  merchandise  from  L.  to  C," 
the  latter  point  being  beyond  the  end  of  the  carrier's  line,  it 
was  held  to  be  a  through  contract,^  as,  also,  where  the  contract 
read,  " to  be  delivered  ....  at  B.,"  and  again  "to  be  deliv- 
ered on  presentation  of  this  receipt  at  C,"  B.  and  C  being 
beyond  the  end  of  the  respective  carrier's  lines.^  Again,  where 
a  bill  of  lading  provided  that  the  goods  should  be  transported 
by  the  carrier  "  to  the  terminus  of  its  road,  and  there  delivered 
to  the  agent  of  connecting  steamboat,  railway  companies,  or 
forwarding  lines,"  and  was  marked  "contract  for  through 
rate,"  this  contract  was  with  the  first  carrier,  who  gave  the  bill 
of  lading  and  who  was  the  carrier  for  the  whole  distance.'^ 

'  W.  &  A.  R.  R.  Co.  V.  McElwee,  ^  Mann   v.    Richard,    7    Am.    Law 

6  Heiskell  (Tenn.),  208;  Mulligan  y.  Reg.  (N.  S.)   (40  Vt.)  702;  Nutting 

Rl.  Cent.  R.  R.  Co.,  36  Iowa,  181;  v.  C.  R.  R.  R.  Co.,   1  Gray  (Mass.), 

Augle  V.  Miss.  &  Mo.  R.  R.  Co.,  9  502. 

ib.  487.  «  De  Villiers  v.  Schr.  John  Bell,  6 

*  Southern  Exp.  Co.  v.   Shea,  38  La.  Ann.  Rep.  544  ;  Kyle  v.  Lawrence 
Ga.  519.  R.  R.  Co.,  10  Rich.  L.  Rep.  (S.  C.) 

3  St.  L.,  K.,   C.  &  M.   R'y  Co.  v.     382. 
Piper,  13  Kan.  505.  '  Gordon  v.  G.  W.  Ry.  Co.,  34  U. 

*  B.  &  P.  S.  Co.  V.  Brown,  4  P.  F.     C.  Q.  B.  224. 
Sm.  (Pa.)  77  ;  Krender  v.  Woolcott, 

1  Hilton  (N.  Y.),  223. 
252 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.        [§  334. 

§  332.  A  receipt  beginning,  «  Received  (as  agents,  and  for- 
warders),"  said,  "  Contracts  from   Neenah   to   New  York   at 
$9  95  per  bushel."     This  was  an  express  undertaking  on  the 
part  of  the  carrier  (whose  line  ended  at  Chicago)  to  transport 
to  New  York  and  imposed  upon  him  the  responsibility  of  a  car- 
rier for  the  whole  route.»     Where  the  agent  told  the  shipper 
that  he  could  "send  it  on  and  collect  back  to  this  office,  and 
I  will  do  that  if  you  will  pay  me  promptly  the  express  charges 
when  I  get  the  return,"  it  was  held  to  be  sufficient  evidence  ot 
a  throuo-h  contract  to  submit  to  a  jury.^   Where  the  only  mention 
made  in  the  contract  of  the  final  destination  was  that  accident- 
ally made  on  the  description  of  the  goods  as  "  marked  to,  etc. 
(the  marks  themselves  raising  no  contract),  it  was  held  not  to 
be  a  through  contract,— the  description  being  only  for  the  pur- 
pose of  identification.' 

§  333.  The  use  of  the  word  "  forward"  in  a  bill  of  lading 
does  not  change  a  common  carrier  to  a  mere  forwarder,  if  the 
contract  is  really  one  of  a  common  carrier.  In  Mercantile 
Mut.  Ins.  Co.  V.  Chase,*  Mr.  Justice  Woodruff,  said :  "  The  use 
of  the  term  '  forward'  in  the  contracts  is  controlled  by  the  nature 
and  extent  of  the  actual  undertaking." 

In  forwarding  goods  beyond  the  end  of  his  route,  a  carrier 
is  bound  generally  to  follow  with  fidelity  the  precise  instruc- 
tions of  the  consignor,  or  suffer  the  risk  of  deviation  there- 
from. In  the  absence  of  express  stipulations,  the  instructions 
become  part  of  the  contract  under  which  the  goods  are  com- 
mitted to  the  carrier.  If  he  has  stipulated  in  writing  that  he 
may  forward  by  any  customary  mode  which  is  safe  and  pru- 
dent, it  is  a  variation  of  his  contract  to  permit  any  oral  direc- 
tion'to  control  it  and  fix  upon  him  a  different  duty.' 

§  334.  A  carrier  undertaking  to  carry  goods  over  his  own 

1  Peet  V.  C.  &  N.  W.  Ry.  Co.,  20  Buckland  v.  Adams  Express  Co.,  97 
Wise.  594.  Mass.  124.            ,,    ^   ^   ,   „   ^    ^ 

2  P   &  R    R.  R.  Co.  V.   Ramsey,  8  ^  Hinckley  v.  N.  Y.  C.  &  H.  K.  K. 
Norris  (Pa.),  474.  R-  Co.,  56  N.  Y.  429  ;  Brintnall  ..  S. 

3  Babcock  ..  L.  S.  &  M.  S.  R.  R.  &  W.  R.  R.  Co.,  32  Vt.  665 !  C   &  N 
Co     49  N.  Y.  491.  W.  Ry.  Co.  v.  N.  L.  Packet  Co.,  70 

*''l    E.    D.'  Smith    (N.  Y.),   115  ;     111.  217  ;  Snow  v.  Ind.  &  R.  Co.,  109 

Ind.  422. 

253 


§  336.]  BILLS   OF   LADING.  [CHAP.  XXIII. 

line  and  then  forward  thera  to  a  destination  beyond,  is  bound 
to  transmit  with  them  to  the  carrier  next  en  route  all  special 
instructions  received  by  him  from  the  consignor  and  failing  to 
do  so  in  any  substantial  particular,  is  liable  for  loss  resulting 
therefrom.' 

In  the  Lowell  Wire  Fence  Co.  v.  Sargent,^  it  was  held  that  an 
expressman,  doing  business  between  two  points  only  and  not 
undertaking  personally  for  the  carriage  of  goods  to  any  farther 
point,  but  merely  engaging  to  forward  thera  to  their  destina- 
tion, was  only  required  to  forward  a  bill  marked  "  for  collec- 
tion," with  the  goods,  through  the  ordinary  channels  of  com- 
munication. 

§  835.  If  a  forwarding  agent  sends  goods  in  a  mode  prohib- 
ited by  the  owner,  he  does  it  at  his  own  risk  and  incurs  the 
liability  of  an  insurer.  An  extreme  example  of  the  application 
of  this  rule  is  found  in  Johnson  v.  N.  Y.  R.  R.  Co.,^  where  the 
defendant  undertook  to  transport  merchandise  to  Albany  and 
forward  thence  to  'Sqw  York,  in  accordance  with  the  shipper's 
instructions,  by  the  People's  Line  of  steamboats  only.  The 
People's  Line  refusing  to  take  the  goods  the  defendant  sent 
them  in  another  way  and  they  were  lost.  The  court  held  that 
the  defendant  was  liable  for  the  loss.  In  the  recent  Pennsyl- 
vania case  of  P.  and  R.  R.  R.  Co.  v.  Beck,*  it  was  held  that 
where  a  railroad  company,  in  disregard  of  a  shipper's  instruc- 
tions and  of  its  own  undertaking,  forwards  merchandise  by 
steamer  instead  of  by  rail  and  the  merchandise  is  lost  by  fire 
on  the  steamer,  the  raih^oad  company  is  responsible  for  the 
loss,  in  an  action  on  the  contract. 

§  336.  Where  goods  are  described  in  the  bill  of  lading  as 
destined  for  a  place  beyond  that  to  which  the  carrier  under- 
takes to  transport  them,  it  is  his  duty,  in  the  absence  of  con- 
trary custom  or  instruction,  to  forward  them  by  the  usual 
conveyance  towards  the  place  of  ultimate  destination.     If  he 

>  Little  M.   R.    R.    Co.   v.   Wash-  '^  33  N.  Y.  610,     But  see  Regan  u. 

burn,  22  Ohio  St.  324 ;   S.  &  M.  R.  R.  Grand  Trunk  R.  Co.,  61  N.  H.  579. 

Co.  V.  Butts,  43  Ala.  385.  *  125  Pa.  St.  620.    See  also  Condict 

^  8  Allen  (Mass.),  189.  v.  Grand  Trunk  Ry.   Co.,  4  Lansing 


254 


(N.  Y.),  106. 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.        [§  338. 

does  SO  he  is  not  liable  for  their  subsequent  loss.'  In  Simkins  v. 
!N^.  and  L.  Steamboat  Co.,^  an  action  was  brought  against  the 
defendant  for  not  properly  forwarding  a  fishing  seine  from  New 
York  to  Norfolk,  Virginia,  so  that  it  arrived  too  late  for  the 
season.  In  accordance  with  the  general  custom,  it  was  sent  in 
a  sailing  vessel,  that  being  twenty  times  less  expensive  than 
sending  by  rail  or  steamboat.  The  court  held  that  the  de- 
fendant was  not  liable. 

Where  a  common  carrier  takes  goods  "  to  forward  and  de- 
liver if  within  his  route ;  if  not,  to  deliver  to  the  connecting 
express  or  stage  at  the  most  convenient  point,"  his  liability  as 
a  common  carrier  ceases  when  the  goods  arrive  at  such  conve- 
nient point  of  intersection.^ 

§  337.  A  contract  to  "forward"  beyond  the  terminus  of  the 
carrier's  own  line  sometimes  makes  him  liable  as  a  common 
carrier  for  the  whole  distance  and  liable  for  loss  on  that  part 
of  the  route  in  which  he  is  not  interested.*  The  carrier 
may,  however,  expressly  stipulate  for  exemption  from  such 
liability.^  Thus,  if  an  express  company  agrees  to  forward  a 
package  to  a  point  beyond  the  terminus  of  its  route,  the  con- 
tract expressly  limiting  its  liability  to  that  of  forwarders  and, 
through  charges  not  having  been  paid,  the  liability  of  the  com- 
pany as  a  common  carrier  ceases  at  the  end  of  its  route.^ 

§  338.  Where  a  carrier  is  engaged  in  the  public  transporta- 
tion of  goods  for  hire,  he  cannot  escape  the  liability  of  a 
common  carrier  by  calling  himself  a  "forwarder  only"  in  bills 

1  Brown  V.  Mott,  22  Ohio  St.  149;  Ian  u.  M.  S.  &  N.  I.  R.  Co.,  16  Mich. 
Snow  V.  Ind.,  etc.,  R.  Co.,  109  Ind.  79;  Mosher  v.  Southern  Exp.  Co.,  38 
422;   Hostetter  o.  Baltimore,  etc.,  R.     (ia.  3  7. 

R.    Co,    (Pa.),    11    Atl.    Rep.    609;  5  Rogers  v.  G.  W.  Ry.  Co.,   16  U. 

McKay  V.  N.  Y.  Cent.,  etc.,  R.  Co.,  C.  Q.  B.  389;    Am.   Exp.   Co.  v.  2d 

50  Hun  (N.  Y.),  563.  Nat.  Bank  of  Titusville,  69  Pa.  St. 

2  11  Cush.  (Mass.)  102.  394;   ^tna  Ins.   Co.  v.  Wheeler,  49 
^  Inhabitants  of   Plantation   No.   4  N.    Y.   616;    Snider  v.  Adams  Exp. 

V.  Hall,  61  Me.  517.     See  also  Arm-  Co.,  63  Mo.  376  ;  Richerson,  etc.,  Co. 

strong  V.  G.  &  T.  Ry.  Co.,  2  P.  &  B.  v.  Grand  Rapids,  etc.,  Co.,  32  Am.  & 

445.  Eng.  Ry.  Cases,  487. 

*  Wilcox    V.    Parmelee,   3    Sanford  ^  R^ed  v.  U.  S.  Exp.  Co.,  48  N.Y. 

(N.Y.),.610;   St.  L.,K.  C.&  N.  Ry.  462. 
Co.  V.  Piper,  13  Kansas,  505;  McMil- 

255 


§  340.]  BILLS   OF    LADING.  [CHAP.  XXIII. 

of  lading.^  Thus,  in  an  action  against  an  express  company  for 
loss  of  a  package  of  gold  by  an  explosion  on  board  of  a  tug,  it 
was  held  that  the  restriction  "  not  to  be  responsible  except  as 
forwarders,"  did  not  exempt  the  defendants  from  liability  for 
loss  occasioned  by  the  negligence  of  the  agencies  employed 
by  them.^ 

§  339.  As  a  general  rule  where  a  carrier  limits  his  liability 
to  his  own  line  he  will  not  be  responsible  for  a  loss  occurring 
after  he  has  delivered  the  goods  to  another  carrier.^  Such  a 
limitation  of  the  carrier's  liability  does  not  violate  a  State  law 
forbidding  any  limitation  of  the  common  law  liability.^  In 
Rickets  v.  B.  &  0.  R.  R.  Co.,'  goods  were  to  be  carried  over 
several  lines  under  a  contract  providing  that  no  connecting 
carrier  should  be  held  liable  for  any  loss  or  damage  to  goods 
except  on  its  route.  The  defendant  was  held  not  liable  for  a 
loss  of  the  goods  after  their  delivery  to  a  steamboat  on  the  Ohio 
River.  In  McCaim  v.  B.  &  0.  R.  R.  Co.,^  goods  were  shipped  from 
Baltimore  to  St.  Louis.  "The  receipt  of  the  first  carrier  stated  : 
"  The  responsibility  of  the  company  is  to  terminate  when  the 
goods  are  unloaded  from  the  car."  The  Court  held  that  the 
first  carrier  was  not  liable  for  an  injury  which  happened  after 
transshipment  of  the  goods  to  the  cars  of  another  railroad  com- 
pany, forming  a  part  of  the  route  to  St.  Louis. 

§  340.  A  common  carrier  may  by  special  contract  protect 
himself  against  liability  for  loss  not  occurring  on  his  own  line, 
even  in  those  States  where  the  acceptance  of  goods  by  the  first 
carrier  makes  him  liable  for  the  through  transportation.  Such 
a  contract  will  be  presumed  from  the   fact   that  a  clause  is 

'  Christenson  v.  Am,  Exp.  Co.,  15  R.    R.   Co.,    24  Barb.    (N.  Y.)  382; 

Minn.  270.  Aldridge  v.  G.  W.  R.  R.  Co.,  15  C.  B. 

2  Hooper  v.  Wells,  Fargo  &  Co.,  27  (N.  S.)  582  ;  Ortt  v.  Minneapolis,  etc., 
Cal.  12.  R.  R.  Co.,  36  Minn.  896  ;  T.  &  P.  R. 

3  Rogers  V.  G.  W.  R.,  16  U.  C.  Q.  R.  Co.  v.  Rogers,  3  Southwest  Rep. 
B.  389;  Taylor  v.  L.  R.  M.  R.  &  T.  660;  Cent.  R.  R.  Co.  v.  Avant,  80 
R.  R.  Co.,  32  Ark.  393  ;    C.  H.  &  D.  Ga.  195. 

and  D.  &  M.  R.  R.  Co.  v.  Pontius,  19  *  Mulligan  v.  111.  Cent.  R.  R.  Co., 

Ohio,  221  ;  Field  v.  C.  &  R.  I.  R.  R.  36  Iowa,  187. 

Co.,    71  111.  458;    M.  D.  T.  Co.  v.  ^  59  N.  Y.  637. 

Moore,  88  ib.  136;    Foy   v.  T.   &  B.  «  20  Md.  202. 

256 


CHAP.  XXIII.]      BILLS  OF  LADING  FOR  THROUGH  CARRIAGE.        [§  341. 

printed  in  the  bill  of  lading,  even  though  the  shipper's  atten- 
tion was  not  called  to  it,  if  it  appears  that  he  had  previously 
shipped  like  articles  and  taken  like  bills  of  lading.^     When  the 
bill  of  lading  says :    "  The  company  will  not  be  responsible  for 
any  goods  inissent,  unless  they  are  consigned  to  a  station  on  the 
railway,"  the  company  are  not  liable  for  any  loss  beyond,  if 
they  have  duly  forwarded   from   their   own  terminus.^     The 
liability  of  a  railroad  company  is  effectually  limited  to  its  own 
line  by  stipulating,  that  when  goods  are  directed  to  consignees 
beyond  its  line,  delivery  by  it  shall  be  complete  and  its  respon- 
sibility cease,  when  the  subsequent  carriers  receive  notice  that 
it  is  ready  to  deliver  the  goods  to  them  for  further  conveyance.^ 
In  Wisconsin  a  company  may  limit  its  liability  to  its  own  line 
of  road  by  express  contract  and  so  exonerate  itself  from  the 
default  or  negligence  of  other  carriers  on  the  route.     This  may 
be  accomplished  by  conditions  printed  on  the  back  of  the  bill 
of  lading  and  referred  to  on  the  face  thus:    "Subject  to  their 
tariff  and  under  the  conditions  stated  on  the  other  side."'*     A 
carrier  in  Massachusetts  may  effectually  limit  his  liability  to 
his  own  route  by  stipulating  that  delivering  to  other  parties 
to  complete  the  transportation  should   terminate  all    liability 
of  the  carrier  himself  for  the  property  intrusted  to  him.«     In 
Kansas  a  carrier  may  provide'  by  contract  that   his  liability 
shall  not  extend  beyond  his  own  line.«     The  Supreme  Court  of 
Illinois  says,  that  while  it  is  true  that  a  railroad  may  restrict 
Its  liability  to  its  own  line,  it  cannot  be  denied  that  it  may 
extend  its  liability  beyond  its  own  line.^ 

^  §  341.  In  England,  the  first  carrier,  in  order  to  claim  exemp- 
tion under  a  contract  limiting  his  liability  to  his  own  line,  must 
show  that  the  goods  were  delivered  uninjured  into  the  hands  of 
another  carrier.^ 

^  E.   T.,   Va.  &  Ga.  R.  R,  Co.  v.  ^  Pendergast  v.  Adams   Exp.  Co., 

Brumley,  5  Lea  (Tenn.),  401  ;  Louis-  101  Mass.  120. 

ville,  etc.,  R.  R.  v.  Meyer,  78  Ala.  597.  ^  gp^g  v.  A.  T.  &  St.  F.  R.  R.  Co. 

2  Chartier   v.    G.    T.    Ry.    Co.,   17  30  Kans.  561. 

Low.  Can.  Jiir.  26.  7  st.    L.    &   L   M.    R.    R.    Co.    v. 

3  Rennie  v.  Northern  Ry.   Co.,  27     Larned,  103  111.  293. 

U.  C.  C.  P.  153.  8  Kent  v.  Midland  R.  Co.,   10   Q 

*  D.  &  M.  R.  R.  Co.  V.  F.  &  M.     B.  1. 
Bank,  20  Wis.  122. 

17  257 


§  342.] 


BILLS   OF   LADING. 


[chap.  XXIV. 


CHAPTER  XXIV. 

LIABILITY   OF   INTERMEDIATE   CARRIERS   UNDER   A 
"THROUGH"  BILL  OF   LADING. 


An  intermediate  carrier  must  deliver 
to  the  next  succeeding  carrier,  §  342. 

The  carrier  in  possession  of  the  goods 
when  destroyed  is  liable  to  the  ship- 
per, §  343. 

Such  a  carrier  may  show  in  defence  the 
misconduct  of  the  preceding  carrier, 
§  344. 

Effect  of  several  carriers  being  associ- 
ated for  through  transportation, 
§  345. 

To    hold    final  carrier  for  injury   to 


goods  shipped,  delivery  to  first  car- 
rier in  good  condition  must  be  shown, 
§346.   _  _ 

Goods  shipped  in  good  condition  are 
presumed  to  remain  so  until  delivery 
to  the  final  carrier,  §  347. 

General  limitation  of  liability  in  the  bill 
by  the  first  carrier  enures  to  the  bene- 
fit of  succeeding  carriers,  §§  348,  349. 

Succeeding  carriers  are  not  benefited 
by  the  contract  made  by  a  first  carrier 
only  for  the  latter's  behalf,  §  350. 


§  342.  In  the  absence  of  any  special  agreement  or  custom 
which  enters  into  the  contract,  where  goods  are  delivered  to 
the  carrier  for  transportation  directed  to  a  point  beyond  the 
terminus  of  his  route,  between  which  and  the  place  of  destina- 
tion of  the  goods  there  are  other  succeeding  connecting  lines 
of  transportation,  the  intermediate  carrier  is  bound  to  trans- 
port the  goods  safely  to  the  end  of  his  route  and  deliver  them 
to  the  next  carrier  on  the  route  beyond.  In  such  case  he  is 
not  relieved  from  his  liability  as  insurer  of  the  goods  by  simply 
unloading  them  at  the  end  of  his  route  and  storing  them  in  a 
warehouse,  without  delivery  or  notice  or  any  attempt  to  deliver 
to  the  next  carrier.^  In  Ladue  v.  Griffith,'^  Mr.  Justice  Smith 
said :  "  While  goods  are  in  the  process  of  transportation  from 
the  place  of  their  receipt  to  the  place  of  destination  it  w^ill 
never  do  in  this  country,  in  my  opinion,  to  subject  them  in 
the  hands  of  any  carrier,  or  by  his  act  or  order,  to  the  respon- 
sibilities of  a  mere  warehouseman."     In  Sherman  v.  Hudson 


'  Irish  V.  M. 
19  Minn.  376. 


&  St.  P.  R.  R.  Co.,         2  11  Smith  (25  N.  Y.),  364. 
258 


CHAP.  XXIV.]      LIABILITY  OF  INTERMEDIATE  CARRIERS.  [§  344. 

River  R.  Co.,^  Mr.  Justice  Earl,  said :  "In  the  case  of  transporta- 
tion of  property  over  several  railroads  constituting  a  continuous 
line,  none  of  the  roads  can  be  said  to  be  agents  of  the  owner. 
Each  is  exercising  an  independent  employment  and  is  contractor 
with  the  owner,  the  contract  being  either  express  or  such  as  the 
law  implies.     Each  is  responsible  for  its  own  negligence." 

§  343.  The  general  rule  may  therefore  be  stated  to  be  that 
when  goods  are  shipped  to  be  transferred  to  successive  carriers, 
the  carrier  in  whose  possession  they  are  when  destroyed  or  in- 
jured is  liable  to  the  owner  or  consignee  for  the  loss  and  in  the 
absence  of  custom  or  contract  to  the  contrary,  an  intermediate 
carrier  is  not  liable  for  the  injuries  received  before  or  after  the 
goods  were  in  his  possession.^ 

§  344.  A  carrier  may  show,  in  defence  to  an  action  for  a  loss 
of  goods,  any  injury,  loss,  fraud,  or  deceit  occasioned  or  prac- 
tised by  any  previous  carrier  or  by  the  shipper  of  the  goods.^ 
Thus  proof  of  negligent  delay  by  the  second  carrier,  without 
which  the  injury  would  not  have  happened,  would  be  a  com- 
plete defence  in  an  action  for  damages  arising  from  alleged 
delay   of    the   first    carrier   when    the   delay  happened   after 


•  64  N.  Y.  254. 

2  Packard  v.  Taylor,  35  Ark.  402 ; 
Conkey  v.  Milwaukee  &  St.  Paul  Ry. 
Co.,  31  Wise.  619;  Hooper  v.  Chi- 
cago &  N,  W.  Ry.  Co.,  27  ib.  81 ; 
Lowenburg  v.  Jones,  56  Miss.  688 ; 
Sumner  v.  Southern  R.  R.  Assn.,  7 
Baxter  (Tenn.),  345;  E.  Tenn.  & 
Ga.  R.  R.  V.  Nelson,  1  Coldwell 
(Tenn.),  272;  Rome  R.  R.  Co.  v. 
Sullivan,  25  Ga.  228 ;  Bryant  v. 
Southwestern  R.  R.  Co.,  68  ib.  805; 
South.  Exp.  Co.  V.  Thornton,  41 
Miss.  216;  The  Convoy's  Wheat,  3 
Wallace,  225 ;  Lesinsky  v.  Great 
Western  Dispatch,  10  Mo.  App.  Rep. 
134;  Carson  v.  Harris,  4  Greene 
(Iowa),  516  ;  Hill  v.  B.  C.  R.  &  N. 
R.  Co.,  60  Iowa,  196  ;  Bissel  v. 
Pricfe,  16  111.  408;  111.  Cent.  R.  R. 
Co.  V.  Cowles,  32  ib.  116;  McMil- 
lian  V.  M.  S.  &  N.  I.  R.  R.  Co.,  16 


Mich.  79 ;  Rogers  v.  Wheeler,  6  Lan- 
sing (N.  Y.),  420;  Babcock  v.  L.  S. 
M.  S.  R.  R.  Co.,  49  N.  Y.  491  ;  Goold 
V.  Chapin,  10  Barb.  (N.  Y.)  612; 
Northrop  v.  S.  B.  &  N.  Y.  R.  R.  Co., 
3  Abb.  Dec.  386 ;  Rawson  v.  Holland, 
59  N.  Y.  611;  Canfield  v.  Northern 
R.  R.  Co.,  18  Barb.  (N.  Y.)  586; 
Root  V.  Grt.  Western  R.  R.  Co.,  45 
N.  Y.  525 ;  Smith  v.  N.  Y.  C.  R.  R. 
Co.,  43  Barb.  (N.Y.)  225  ;  Packard  v. 
Taylor,  35  Ark.  402  ;  Knott  w.  Raleigh, 
etc.,  R.  Co.,  98  N.  C.  73  ;  Walling- 
ford  V.  Columbia,  etc.,  R.  Co.,  26  S. 
Car.  258  ;  AVernwag  v.  Philadelphia, 
etc.,  R.  Co.,  117  Pa.  St.  46;  Inde- 
pendence Mills  Co.  V.  Burlington,  etc., 
R.  Co.,  72  Iowa,  535  ;  Harris  v.  Grand 
Trunk  Ry.,  15  R.  I.  371. 

3  G.  W.  R.  R.  Co.  r.  McDonald, 
18  111.   172;  Hill  V.  B.  C.  R.  &  N. 
R.  R.  Co.,  60  Iowa,  196. 
259 


g  345.]  BILLS    OF   LADING.  [CIIAP.  XXIV. 

delivery  to  the  Becoiid.^  So  where  goods  were  carried  first  by 
a  stearnshii")  company  and  then  by  a  raih-oad  con)pany  and  the 
latter  was  sued  for  damage  to  the  goods,  it  was  held  that  if  the 
jury  were  satisfied  that  there  was  no  connection  between  the 
railroad  company  and  the  steamship  company  and  that  the 
goods  were  damaged  by  the  latter  and  not  by  the  former,  the 
former  was  not  liable.^  In  Southern  Express  Co.  v.  Urquhart' 
goods  were  lost  by  the  second  carrier.  There  was  no  proof  of 
the  terms  on  which  they  were  carried  either  by  the  first  or  by 
the  second  carrier.  It  was  held  that  the  owner  might  adopt  the 
act  of  the  first  carrier,  treat  his  delivery  of  the  goods  as  author- 
ized and  sue  the  second  carrier  on  his  implied  undertaking  as 
a  common  carrier, — his  liability  as  such  being  presumed  in  the 
absence  of  proof  to  the  contrary.  In  Wright  v.  N.  C  R.  R. 
Co.,*  a  second  carrier  on  receiving  goods,  omitted  certain  direc- 
tions from  its  manifest  and  the  goods  were  lost.  The  company 
was  held  liable  for  its  mistake. 

Where,  liowever,  goods  are  damaged  in  the  hands  of  the  first 
carrier  and  the  second  carrier,  knowing  this  fact  and  intending 
to  aid  in  concealing  it,  gives  the  first  carrier  a  clean  bill  of 
lading,  he  will  not  be  allowed  to  show  that  they  were  dam- 
aged when  he  received  them  in  order  to  avoid  the  payment  of 
the  damages.* 

§  345.  Where  several  common  carriers  are  associated  to 
form  a  continuous  line  and  each  is  empowered  to  contract  for 
freight  and  passengers  for  the  whole  line  and  to  receive  pay 
for  the  same,  which  is  to  be  divided  in  prescribed  proportions, 
they  are  jointly  liable  for  losses  upon  any  part  of  the  line® 

J  M.  C.  R.   R.  Co.  V,  Burrows,  33  Freight  Line,  21   Am.  &  Eng.  R.  R. 

Mich.  6.  Cas.  1 ;  F.  &  W.  R.  R.  Co.  v.  II:inna, 

»  M.  &  W.  R.  R,  Co.  V.  Moore,  51  6  Gray  (72  Mass.),  539;   Baltimore, 

Ala.  394.  etc.,  Steamboat  Co.  v.  Brown,  54  Fa. 

"  52  (ia.  142.  77;     Railroad    Co.    v.    Androscoggin 

*  8  Phila.  19;  O'Rourke  v.  The  C.  Mills,  22  Wall.  594;  Railroad  Co.  v. 
B.  &  Q.  R.  Co.,  44  Iowa,  52G.  Pratt,  ib.  123;  Citizens  Insurance  Co, 

*  Bowman  v.  Kennedy  (S.  C.  of  v.  The  Kountz  Line,  4  Wood's  Rep. 
Pa.),  1  Am.  Law  Reg.  (O.  S.)  119.  268;  Bostwick  i).  Champion,  1 1  Wend. 

8  Barter  v.  Wheeler,  10  Am.  Law  (N.  Y.)  571  ;  Champion  v.  Bostwick, 
Reg.  (N.  S.)  194  ;  49  N.  H.  9  ;  Block  18  ib.  175;  Briggs  v.  Vanderbilt,  19 
w.  Erie  &  >Jortli  Shore  Despatch  Fast     Barb.    (N.  Y.)    222;    Hart   v.  Rens- 

260 


CHAP.  XXIV.]      LIABILITY  OF  INTERxMEDIATE  CARRIERS.  [§  347. 

and  if  an  association  of  common  carriers  agrees  to  guarantee 
all  the  bills  of  lading,  each  company  is  bound  by  a  bill  of  lading 
issued  by  any  one  of  t'bem.^ 

§  34G.  Where  goods  are  delivered  to  a  common  carrier  to  be 
carried  by  a  series  of  connecting  lines  to  the  point  of  destina- 
tion and  the  goods  are  delivered  in  a  damaged  condition  to  the 
consignee,  the  shipper  must  show  in  an  action  against  the  last 
carrier  that  the  goods  were  delivered  in  good  condition  to  the 
first  carrier.  The  last  carrier  must  then  show  affirmatively  that 
the  goods  were  not  injured  on  his  line.  The  presumption  is 
that  the  goods  continue  in  the  condition  in  which  they  were 
when  the  shipper  parted  with  them.^ 

§  347.  In  Sh river  v.  S.  C.  &  St.  P.  R.  R.  Co.,^  it  appeared 
that  two  slabs  of  marble  carried  over  four  railroads  arrived 
broken  and  the  owner  sued  the  last  road.  The  court  held 
that  "  where  goods  pass  over  a  line  of  several  different  carriers, 
the  jury,  there  being  no  direct  evidence  to  the  contrary,  may 
presume  that  they  reached  the  last  carrier  in  the  same  condition 
as  when  delivered  to  the  first."  In  Laughlin  v.  C.  &  N.  W. 
Ry.  Co.,*  certain  boxes  of  goods  were  transported  by  three 
successive  carriers  and  on  final  delivery  it  was  found  that  one 
had  been  broken  open  and  part  of  the  contents  stolen.  Suit 
was  brouu;ht  against  the  last  carrier.  The  court  held  that  the 
jury  might  presume,  in  the  absence  of  evidence  to  the  contrary, 
that  the  boxes  remained  unopened  until  they  came  into  the 
possession   of    the  last  carrier  and   that    the  loss  happened 

selaer,  etc.,  R.  R.  Co.,  8  N.  Y.  37;  ^  Smith  v.  N.  Y.  C.  R.  R.  Co.,  43 

Gass  V.  New  York,  etc.,  R.  R.   Co.,  Barbour  (N.  Y.),  225;  Livingston  y. 

99  Mass.  220;   Converse  v.  Norwich,  N.  Y.   C.  &   H.  R.   R.   Co.,   5    Hun 

etc.,    Transp.    Co.,    33    Conn.     166;  (N.  Y.),  562;    Harp  v.  The   Grand 

Ellsworth    V.    Tartt,     26    Ala.     733;  Era,  1  Wood's  Rep.  185 ;   Georgia  R. 

Montgomery,  etc.,   R.  R.   v.   Moore,  R.  Co.   v.  Gann,   68  Ga.  350;  M.  & 

51    ib.    394;    Wilson    v.  Chesapeake,  W.  P.  R.  R.  Co.  v.  Moore,  51   Ala.^ 

etc.,  R.,  21  Gratt.  (Va.)  654;  Sehulter  394;   Southern  Exp.  Co.   v.  Hess,  53 

r.  Adams  Exp.  Co.,  6Cent.  L.  J.  175;  ib.   19;  Leo  v.  St.  P.  M.  &  M.  Ry. 

Gill  V.  Manchester,  etc.,  Ry.,  L.  R.  8  Co.,  30  Minn.  438  ;   Brintnall  v.  Sara- 

Q.  B.  186.  toga  &  W.  R.  R.  Co.,  32  Vt.  665. 

>  Baltimore,  etc.,  R.  Co.  v.  Wilkens,  ^  24  Minn.  5Q6. 

44  Md.  11.  *  28  Wis.  204. 

261 


§  348.]  BILLS   OF   LADING.  [CHAP.  XXIV. 

through  its  fault.  In  Dixon  v.  R.  &  D.  R.  R.  Co.,^  a  piano  was 
shipped  in  good  order  from  Boston  to  Greensboro,  N".  C,  over 
several  connecting  lines.  When  it  was  delivered  by  the  last 
carrier  in  the  line,  at  Greensboro,  it  was  badly  damaged.  The 
court  held  that  the  burden  of  proving  that  the  piano  was  in- 
jured on  some  other  of  the  connecting  lines  than  their  own,  was 
on  the  defendants  and  that  having  failed  to  do  this  they  were 
liable  for  the  damage. 

In  Richardson  v.  "  The  Charles  P.  Chouteau,"^  cotton  was 
shipped  on  through  bills  of  lading  by  certain  steamboats.  When 
it  arrived  at  its  final  destination  it  was  in  a  damaged  condition. 
It  appeared  that  the  last  steamboat  received  it  in  about  the 
same  condition  in  which  it  was  delivered.  The  court  held 
that  the  libel  should  be  against  the  last  boat, — the  owner  of  the 
cotton  not  being  required  to  ascertain  to  which  of  the  several 
boats  the  damage  was  attributable. 

The  receipt  of  goods  given  at  the  place  of  shipment  by  the 
first  carrier  is  evidence  against  the  last  carrier,  as  to  the  goods 
shipped,  their  condition  and  the  terms  of  the  contract.^ 

In  Georgia  it  is  provided  by  statute  that  the  last  carrier  shall 
be  liable  to  the  consignee  for  any  damage  occurring  during  the 
whole  transit,  provided  that  the  goods  were  originally  delivered 
in  good  condition.* 

§  348.  Where  goods  are  delivered  to  a  carrier  to  be  trans- 
ferred over  a  number  of  connectins;  lines,  a  bill  of  ladins;  given 
by  the  first  carrier  stipulating  for  exemption  from  liability  in 
general  terms  inures  to  the  benefit  of  the  several  carriers  over 
whose  lines  the  goods  are  carried.  It  is,  however,  only  where 
the  contract  is  for  through  transportation  that  each  connecting 
carrier  will  be  entitled  to  the  benefits  and  exemptions  of  the 
contract  between  the  shipper  and  the  first  carrier.  Otherwise 
an  intermediate  carrier's  liability  is  that  of  an  insurer  unre- 
stricted by  any  special  contract  with  the  shipper  and  such 
liability  continues  until  he  delivers  to  the  next  connecting 
carrier.' 

»  74  N.  C.  538.  *  Grand  Trunk  Railway  Co.  v.  At- 

*  37  Fed.  Rep.  532.  water,  18  Lower  Canada  Jurist,  53. 

3  Southern  Exp.  Co.  v.  Hess,  53  ^  ]^I.  D.  T.  Co.  v.  Bolles,  80  111. 
Ala.  19.  473  •  Manhattan  Oil  Co.  v.  C.  &  A.  R. 

262 


CHAP.  XXIV.]      LIABILITY  OF  INTERMEDIATE  CARRIERS.  [§  349. 

In  Whitworth  v.  Erie  R.  R.  Co.,*  cotton  was  shipped  at 
Memphis  for  Jersey  City,  under  contracts  with  certain  trans- 
portation companies,  exempting  them  "  and  their  connections" 
from  liability  from  loss  by  fire.  The  cotton  was  destroyed  while 
in  the  custody  of  a  connecting  carrier.  It  was  held  that  being 
one  of  the  "  connections,"  the  said  carrier  was  entitled  to  the 
benefit  of  the  contract  exemptions  and  not  liable  unless  the 
fire  resulted  from  negligence.  In  Wilson  v.  Harry ,^  goods 
were  shipped  by  steamboat  with  the  right  of  transshipment. 
There  was  a  provision  in  the  bill  of  lading  that  the  owner  of 
the  second  boat  should  not  be  liable  for  injuries  done  on  board 
the  first  one.  It  was  held  that  the  owners  of  the  second  boat 
were  not  liable  in  an  action  of  tort  for  injuries  received  on 
board  the  first,  by  reason  of  the  first  having  coerced  the  pay- 
ment of  the  entire  freight  before  delivery  of  the  goods. 

§  349.  In  the  leading  English  case  of  Bristol  and  Exeter  Ry. 
Co.  V.  Collins,^  goods  were  delivered  to  the  Great  "Western 
Railway  Company,  to  be  sent  to  Torquay.  The  bill  of  lading 
stated  that  the  Great  Western  Railway  Company  "  will  not  be 
answerable  for  the  loss  of,  or  damage  to,  any  goods  arising  from 
fire."  At  Bristol  the  goods  were  delivered  to  the  Bristol  and 
Exeter  Railway  to  be  carried  to  Torquay.  They  were  placed 
in  the  night  on  a  siding  in  an  open  shed  of  the  defendant, 
where  they  were  destroyed  by  fire.  The  House  of  Lords  de- 
cided that  the  Bristol  and  Exeter  Railway  was  not  liable  for  the 
loss.  The  Lord  Chancellor  (Lord  Chelmsford)  said :  "  I  think, 
therefore,  that  the  contract  was  entire ;  was  for  the  whole 
journey  from  Bath  to  Torquay,  and  was  made  with  the  Great 
Western  Railway  Company  alone ;   that  the  goods  were  carried 

R.   Co.,   5  Abb.   Pr.  N.   P.  (N.  Y.)  Ry.  Co.,   25  Upper  Canada  (C.  P.), 

289  ;  Faulkner  v.  Hart,  82  N.  Y.  413  ;  Rep.  488  ;  Erie  Ry,  Co.  v.  Lockwood, 

Maghee  v.  Camden,  etc.,  R.  R.  Co.,  28    Ohio    State,    358 ;    Jenneson    v. 

45  N.  Y.  514  ;  Lamb  i'.  Camden,  etc.,  Camden,  etc.,  R.  R.  Co.,  4  Am.  Law 

R.  R.  Co.,  4C  ib.  271  ;  "Whitworth  v.  Reg.    234  ;     U.    S.    Express    Co.    v. 

Erie  R.  R.  Co.,  6  Am.  &  Eng.  R.  R.  Harris,  51  Ind.  127  ;  Levy  v.  Southern 

Cas.,  349;  Whiteliead  v.  Wilmington,  Express  Co.,  4  S.  Car.  234. 

etc.,  R.  R.  Co.,  9   ib.  168;   Taylor  v.  i  87  N.  Y.  413. 

Little    Rock,    etc.,     R.    R.    Co.,    39  «  8  Casey  (Pa.),  270. 

Ark.   148  ;  Gordon  v.  Great  Western  "  7  House  of  Lords,  197. 

263 


g  350.]  BILLS   OF   LADING.  [CHAP.  XXIV. 

on  the  defendants'  railway  under  the  contract,  and  that  the  de- 
fendants are  consequently  either  not  liable  at  all,  as  no  agree- 
ment was  entered  into  with  them,  or  that,  if  the  contract  in  any 
way  attaches  to  them,  the  exception  as  to  loss  by  fire  accom- 
panies it  and  exonerates  them  from  liability." 

A  connecting  carrier  who  is  aiding  a  first  carrier  in  the  per- 
formance of  his  contract,  for  a  compensation  to  be  paid  by  the 
latter,  to  whom  the  former  is  but  a  subordinate,  is  shielded  by 
a  condition  against  liability  for  loss  by  fire  in  the  bill  of  lading, 
and  this  is  so  although  the  first  carrier  did  not  in  regard  to  fire, 
as  he  did  in  some  other  respects,  make  express  provisions  in  the 
contract  for  the  exemption  of  connecting  lines.* 

§  350.  An  intermediate  carrier  is  not,  however,  entitled  to 
the  benefits  of  the  restrictive  contract  entered  into  by  the  first 
carrier  solely  on  his  own  behalf.  He  is  bound  to  deliver  to  the 
carrier  next  on  the  route  and  is  not  relieved  of  responsibility  by 
storing  the  goods  at  his  own  terminus  in  a  warehouse.^  A  bill 
of  lading  may  be  a  contract  by  the  first  carrier  to  transport 
goods  over  his  own  route  and  deliver  them  at  the  end  thereof 
to  a  second  carrier  to  be  forwarded  to  their  destination  and  the 
freight  fixed  by  him  for  the  whole  discharged.  This  will  not 
make  it  a  through  contract  so  as  to  entitle  the  succeeding  car- 
riers to  the  benefit  of  exceptions  from  liability  contained  in  the 
contract.^ 

In  C.  and  A.  R.  R.  Co.  v.  Forsyth,^  the  Pennsylvania  Rail- 
road Company  gave  a  receipt  for  oil  to  be  delivered  to  "  Leech 
at  the  company's  freight  station,  Philadelphia."     Appended  to 

the  receipt  was,  "  Rate  to  Red  Hook,  65  cents This  oil 

is  carried  only  on  open  cars  and  entirely  at  the  owner's  risk 
from  fire  and  leakage  while  in  possession  of  the  railroad  com- 
pany or  carriers  while  standing  or  in  transit."     The  freight  was 

'   Manhattan  Oil  Co.  v.  C.  &  A.  R.  Y.  491  ;    Merchants'  Despatch  Trans. 

R.  &  T.  Co.,  54  N.  Y.  197  ;  S.  C.  52  Co.  v.  Bolles,  80  111.  473  ;  Burroughs 

Barb.  (N.  Y.)  72.  v.  Grand  Trunk  R.  R.  Co.,  32  Am.  & 

2  Bancroft   v.    M.    D.    T.   Co.,    47  Eng.  R.  R.  Cases,  467. 

Iowa,  262  ;  Witbeck  v.   Holland,   55  ^  Min&  Ins.  Co.  v.  Wheeler,  49  N. 

Barb.  (N.  Y.)  443;  Martin  v.  Amer.  Y.  616;  Gordon  v.  Great  Western  Ry. 

Ex.   Co.,   19   Wis.   336;    Babcock  v.  Co.,  25  Upper  Canada  (C.  P.),  488. 

Lake  Shore,  etc.,  R.  R.  Co.,  49  N.  *  61  Pa.  St.  81. 

264 


CHAP.  XXIV.]      LIABILITY  OF  INTERMEDIATE  CARRIERS.  [§  350. 

to  be  paid  at  Red  Hook.  At  Philadelphia  the  Camden  and 
Amboy  R.  R.  Co.  received  the  goods  and  gave  a  receipt  to 
"  Leech,  Agent  of  Pennsylvania  Railroad  Company,"  for  the 
oil  to  be  transported  to  :N"ew  York.  The  oil  was  destroyed  by 
fire  between  Philadelphia  and  Red  Hook.  The  court  held  that 
the  Camden  and  Amboy  Railroad  Company  was  liable  for  the 
loss,  as  there  was  no  contract  with  the  defendants  other  than 
the  receipt  of  their  shipping  agent  for  the  oil,  which  contained 
no  limitation  of  the  carrier's  liability  at  common  law. 

265 


352.] 


BILLS   OF    LADING. 


[chap.  XXV. 


CHAPTER  XXV. 


THE  CLAUSE  "PRIVILEGE  OF  RESHIPPING." 


Effect  of  the  clause  "  privilege  of  re- 
shipping,"  §  351. 

"  Privilege  of  reshipping  in  case  of 
low  water,"  §  352. 


The  privilege  must  be  exercised  in  the 
customary  way,  §  353. 

Effect  of  the  clause  on  the  second  car- 
rier's lien  for  freight  charges,  §  354. 


§  351.  The  privilege  of  transshipment  reserved  to  a  common 
carrier  in  his  bill  of  lading  does  not  discharge  him  from  any 
liability  which  is  incident  to  his  contract  until  the  goods  be 
delivered  at  the  destined  port.  Such  stipulation  is  for  his 
benefit.  It  continues  his  liability,  but  throws  upon  the  owner 
any  increase  of  expense.^  Where  a  bill  of  lading  said,  "  with 
privilege  of  reshipping  on  any  good  boat,"  it  was  held  that  the 
master  did  not  lessen  his  liability  by  reshipping  the  goods,  but 
was  responsible  for  their  delivery,  unless  the  loss  was  by  the 
unavoidable  accidents  of  the  river.  It  was  necessary  for  him 
to  prove  that  the  second  boat  was  a  good  one.  If  a  common 
carrier  attempts  to  perform  his  contract  in  a  manner  different 
from  his  undertaking,  he  becomes  an  insurer  for  the  absolute 
delivery  of  the  goods  and  cannot  avail  himself  of  any  excep- 
tions made  in  his  behalf  in  the  contract.'^  In  Ilirsch  v.  Leathers,' 
Mr.  Justice  Taliaferro,  said  :  "  The  privilege  of  transshipment 
stipulated  by  the  carriers,  by  no  means  exonerates  them  from 
the  obligation  to  deliver  the  goods  at  the  point  named  in  the 
contract  of  aff'reightment.  They  were  bound  in  reshipping  to 
employ  a  seaworthy  vessel  and,  as  to  their  liability,  the  second 
vessel  is  considered  as  much  theirs  as  the  first." 

§  352.  Where  the  bill  of  lading  for  goods  carried  on  a  steam- 

1  Whitesides  v.  Russell,  8  W.  &  S.  Tio  v.  Vance,   11  La.   199;   Cassilay 

(Pa.)  44 ;    Little  v.   Semple,   8  Mo.  .v.  Young,  4  B.  Mon.  (Ky.)  265. 
99 ;    Cox    V.    Foscue,    37    Ala.    505  ;         ^  Dunseth  v.  Wade,  3  111.  285. 
Propeller  Mohawk,  8  Wallace,  153  ;         "  23  La.  Ann.  Rep.  50. 
266 


CHAP.  XXV.]  PRIVILEGE   OF   RESHIPPING.  [§  353. 

boat  says,  "with  privilege  of  reshipping  in  case  of  low  water," 
the  clause  is  a  privilege  reserved  to  the  boat  and  not  a  duty 
imposed  upon  it.  It  has  a  right  to  continue  and  complete 
the  voyage  when  the  obstacle  is  removed,  without  taking  ad- 
vantage of  the  privilege.^  Where  a  steamboat  contracted  to 
carry  .certain  merchandise  from  New  Orleans  to  Shreveport, 
"  with  the  privilege  of  reshipping,"  and  the  river  was  so  low 
that  she  was  unable  to  proceed  all  the  way,  it  was  held  that  there 
was  an  implied  obligation  to  reship,  if  she  could  not  get  up  the 
river  within  a  reasonable  time.^  In  a  case  where  the  bill  of 
lading  said,  "  in  case  the  whole  or  any  part  of  the  goods  speci- 
fied herein  be  prevented  by  any  cause  from  going  in  said  ship, 
the  ship  owner  is  only  bound  to  forward  them  by  succeeding 
ships  of  the  same  line,"  the  court  did  not  decide  whether  or 
not  this  referred  only  to  cases  when,  for  some  reason,  transship- 
ment becomes  necessary  after  the  goods  had  been  originally 
loaded,  but  said  that  at  least  sufficient  cause  must  be  shovvn.^ 

§  353.  Where  the  privilege  of  reshipping  is  reserved  in  a 
bill  of  lading,  the  carrier  must  exercise  the  privilege  in  the 
usual  and  customary  manner.  In  the  case  of  Warren  v.  Hen- 
derson,* the  whole  question  of  negligence  and  want  of  care 
imputed  to  the  defendants  turned  upon  the  point  as  to  whether 
they  were  justified  in  transshipping  from  a  steamer  into  a  sail- 
ing craft  instead  of  into  another  steamer,  the  plaintiff"  con- 
tending that  a  steamer  would  have  more  easily  escaped  the 
effects  of  the  tempestuous  weather.  The  goods  had  been  trans- 
shipped into  a  sailing  vessel,  which,  with  them  on  board,  was 
lost  in  a  storm.  By  the  bill -of  lading  it  was  agreed  that  trans- 
shipment should  take  place  at  Kingston.  The  court  said :  "  The 
defendants  have  proved  by  three  witnesses,  conversant  with  the 
usages  of  the  forwarding  business  at  Kingston,  that  it  is  usual 
to  transship  at  Kingston  goods  intended  for  Chicago  and  other 
western  ports,  and  that  sailing  vessels  are  generally  used  for  the 

1  Sturgess  v.  Steamboat  Columbus,  well  v.  Butler,  6  McLean,  296  ;  Carr 
23  Mo.  230.  V.  Steamboat  Michigan,  27  Mo.  196. 

2  Hatchett  v.  Steamer  Compromise,  ^  Kirkpatrick  v.  Amer.  S.  S.  Co., 
12  La.  Ann.  Rep.  783;  White  v.  2  Weekly  Notes  of  Cases  (Pa.),  308. 
Steamer  Kate  Dale,  16  ib.  172;  Me-        *  8  Lower  Canada,  108. 

Gregor  v.  Kilgore,  6  Ohio,  361 ;  Broad- 

267 


o  354  1  BILLS   OF   LADING.  [CHAP.  XXV. 

conveyance  of  goods  to  the  ports  in  the  upper  lakes.  The  river 
navio-iition  may  be  said  to  terminate,  and  the  lake  navigation 
to  commence,  at  Kingston.  It  is  this  that  renders  a  change  of 
craft  there  advantageous  and  the  transshipment  generally  takes 
place  in  consequence  of  the  change  of  craft The  defend- 
ants had  a  right  under  the  bill  of  lading  to  transship  the 
property  entrusted  to  their  care.  They  therefore  had  a  right  to 
transship  that  property  in  the  usual  mode  at  that  time  and  as 
it  is  proved  that  they  did  so,  I  hold  that  they  are  not  charge- 
able with  negligence  and  that  the  non-delivery  of  the  goods 
was  not  attributable  to  any  fault  on  their  part."  The  action 
was  accordingly  dismissed  with  costs. 

Where  a  reshipment  of  goods  is  made  by  a  common  carrier 
without  authority  and  they  are  afterwards  lost,  even  by  the 
act  of  the  public  enemy,  he  is  liable.^ 

§  354.  Where  the  bill  of  lading  says  "  with  the  privilege  of 
reshipping,"  the  second  carrier  is  not  the  mere  agent  of  the 
first.  He  has  a  lien  on  the  goods  for  his  proper  remuneration 
and  cannot  be  deprived  of  it  by  bad  faith  on  the  part  of  the 
first  carrier.^ 

1  G.  &  B.  R.  Nav.  Co.  W.Marshall,  ^  Walker  v.  Cassaway,  4  La.  Ann. 
48  Ind.  596.  Rep.  19. 

268 


CHAP.  XXVI.]        STIPULATIONS  AS  TO  DEMURRAGE,  ETC. 


[§  356. 


CHAPTER  XXVI. 


STIPULATIONS   AS  TO  DEMURRAGE,  ETC. 


Stipulation  as  to  the  payment  of  de- 
murrage in  the  bill,  §  355. 

Liability  for  demurrage  where  the  bill 
contains  no  such  clause,  §  356. 


Provision  in  a  charter-party  as  to  de- 
murrage, §  357. 

Construction  of  the  phrases  "charges" 
and  "primage  and  average  accus- 
tomed," §  358. 


§  355.  Bills  of  lading  sometimes  contain  express  stipulations 
as  to  demurrage.  In  such  a  case  the  acceptance  of  the  goods 
by  the  consignee  is  evidence  of  an  agreement  by  him  to  pay 
demurrage  as  well  as  freight.*  Thus  in  Jesson  v.  Solly^  goods 
were  shipped  under  a  bill  of  lading  providing  that  the  "ship  is 
to  be  cleared  in  sixteen  days  and  eight  pounds  per  day  demur- 
rage to  be  paid  after  that  time."  It  was  held  that  the  con- 
signee accepting  delivery  of  the  goods  under  such  a  bill  of  lading 
was  liable  to  pay  the  demurrage.  In  Lake  v.  Ilurd^  a  bill  of 
lading  provided  .that  twenty-four  hours  after  arrival  at  port 
and  notice  to  the  consignee  there  should  be  allowed  for  receiv- 
ing the  cargo  at  'the  rate  of  one  day  (excepting  Sundays)  for 
every  hundred  tons  thereof,  after  which  the  consignee  should 
pay  demurrage  for  each  day's  detention.  The  cargo  arrived 
on  Sunday  and  the  carrier  on  that  day  notified  the  consignee 
and  was  told  to  take  his  cargo  to  the  railroad  company's  dock 
and  there  discharge,  according  to  the  rules  of  the  dock,  the  re- 
quirement of  the  company  and  the  custom  of  the  port.  This 
was  the  cheapest  and  quickest  manner  of  unloading,  but  in  so 
doing  the  carrier  was  subjected  to  detention.  The  consignee 
was  held  liable  for  the  demurrage. 

§  356.  Where  the  bill  of  lading  contains  no  stipulation  as  to 
demurrage,  the  common  law  courts  have  usually  held  that  the 


'  Allen  V.  Coltart,  L.  R.  11  Q.  B. 
D.  782 ;  Hall  v.  Eastwick,  1  Lowell, 
456. 


2  4  Taunt.  52. 
'  38  Conn.  536. 


269 


§  358.]  BILLS   OF   LADING.  [CHAP.  XXVI. 

consignee  or  his  assignee  is  not  liable  for  demurrage,  although 
they  have  accepted  the  goods.^  In  England  the  rule  has  been 
chano-ed  by  act  of  Parliament^  and  in  the  United  States  the 
admiralty  courts  have  refused  to  follow  the  common  law  deci- 
sions.^  In  The  Hyperion's  Cargo^  it  was  held  that  the  master 
had  a  lien  upon  the  cargo  for  demurrage,  although  demurrage 
was  not  expressly  stipulated  for  in  the  bill  of  lading. 

§  357.  Where  a  charter-party  provides  for  demurrage,  but 
no  mention  of  it  is  made  in  the  bill  of  lading,  the  assignee  of 
the  bill  of  lading  is  not  liable  for  demurrage  unless  he  has  no- 
tice of  the  terms  in  the  charter-party.^ 

§  358.  The  word  "  charges"  was  held,  in  Huntly  v.  Bows,^ 
not  to  include  demurrage ;  but  in  C.  &  8.  W.  R.  R.  Co.  v.  N. 
W.  U.  Packet  Co.^  it  was  held  to  include  salvage. 

The  words  "  with  primage  and  average  accustomed"  do  not 
require  the  payment  of  primage  where  none  is  payable  by  the 
custom  of  the  port  of  shipment.^ 

'  Gage  V.  Morse,  12  Allen  (Mass.),  Etten  v.  Newton,  25  N.  Y,  St.  Rep'r, 

410;    Young  r.  Moeller,  5   E.  &  B.  751  ;  Pietro  G.,  38  Fed.  Rep.  148. 

755;    Chappell   v.    Comfort,    8   Can.  *  2  Lowell,  93. 

Law  Jour.    (O.    S.)    138;    Miner  v.  ^  Oliver  v.  Muggeride,  5  Can.  Law 

N.  &  W.  R.  R.  Co.,  32  Conn.  91.  Journ.  (O.   S.)   166  ;  Carr  v.  Austin, 

2  Smurthwaite  v.  Wilkins,  11  C.  B.  etc.,  R.  R.  Co.,  4  Wood,  327. 
(N.  S.)  842.  «  55  Barb.  (N.  Y.)  310. 

3  Sprague  u.  West,  Abb.  Adm.  Rep.  ''  38  Iowa,  377. 

548 ;  R.  R.  Co.  V.  Northam,  2  Ben.  1 ;        «  Vose  v.  Morton,  5  Gray  (71  Mass.), 
Huntly  V.  Dows,  55  Barb.  310;   Rob-     594. 
bins  V.  Welsh,  9  Phila.  (Pa.)  409  ;  Van 
270 


CHAP.  XXVII.]      STIPULATIONS  AS  TO  PAYMENT  OF  FREIGHT.      [§  359. 


CHAPTEE  XXVII. 

STIPULATIONS  AS  TO  PAYMENT  OF  FEEIGHT. 


Effect  of  stipulations  in  the  bill  as  to 

lien  for  "freight,"  §359. 
The     clause    "freight    charges    paid 

through"  does  not  deprive  the  last 

carrier  of  his  lien,  §  360. 
Lien  for  freight  is  lost  if  the  goods  are 

injured  by  the  carrier's  negligence, 

§361. 
Goods  of  one  shipper  are  not  liable  for 

charges   on   the  goods   of  another, 

though  shipped  under  the  same  bill, 

§362. 
Freight — person    to    whom    payable, 

§  363. 
Freight — person    by    whom    payable, 

§§364,365,366,367,368. 
"He    (the     consignee)     paying     the 
freight,"    and     similar     clauses,    § 
369. 


"  Delivery  upon  payment  of  freight," 

§  370. 
Refusal  to  give  a  bill  unless  freight  be 

previously  paid,  §  371. 
Freight — amount  due,  §  372. 
Freight  payable  upon  "net  weight  de- 
livered," §  373. 
A  promise  to  pay  reasonable  freight  is 

implied  by  law,  §  374. 
Right  to  set  off  damages  against  a  claim 

for  freight,  §  375. 
Freight  for  goods  delivered  short  of 

destination,  §  376. 
Freight    for    goods    underclassed    by 

the  shipper,  §  377. 
Freight— when  due,  §§  378,  379. 
Specific  stipulations  contained  in  the 
bill,   judicially    construed,    §§   380, 
381. 


§  359.  Common  carriers  have  a  lien  for  freight  on  the  goods 
which  they  have  carried.  The  bill  of  lading  may  be  so  ex- 
pressed as  to  affirm  the  existence  of  the  lien,  or  to  extend  or 
modify  it,  or  to  exclude  it  altogether.^  Thus  the  parties  may 
agree  that  the  goods,  when  they  arrived  at  the  port  of  destina- 
tfon,  shall  be  deposited  in  the  warehouse  of  the  consignee  or 
owner  and  that  such  a  deposit  shall  not  be  regarded  as  a  waiver 
of  the  lien.2    Where  it  is  stipulated  that  the  goods  are  to  be 


1  The  Bird  of  Paradise,  5  Wall. 
545  ;  Chase  y.  Westmore,  5  M.  &  S. 
180;  Tate  v.  Meek,  8  Taunt.  280; 
Lucas  V.  Nockells,  4  Bingham,  731  ; 
Alsager  v.  Dock  Co.,  14  M.  &  W. 
798;  Bags  of  Linseed,  1  Black,  112; 


Goodman  v.  Stewart,  Wright.  (Ohio), 
216;  McLean  v.  Fleming,  L.  R.  H. 
L.  (Sc.  App.)  128;  Webb  v.  Ander- 
son, Taney,  504. 

2  The  Eddy,  5  Wall.  481. 

271 


^  362.]  BILLS   OF   LADING.  '  [CHAP.  XXVII. 

delivered  at  the  port  of  discharge  before  the  freight  is  paid 
and  without  any  conditional  qualification,  the  lien  of  the  ship- 
owner for  the  payment  of  the  freight  is  waived.*  If  the  pay- 
ment of  the  freight  is  to  be  concurrent  or  simultaneous  the  lien 
exists  in  full  force.  In  "  The  Volunteer"^  Mr.  Justice  Story  said  : 
"The  rio-ht  of  lien  for  freight  does  not  absolutely  depend  on  any 
covenant  to  pay  freight  on  delivery  of  the  cargo ;  but  it  may  exist 
if  it  appears  that  the  payment  was  to  be  made  in  cash  or  bills 
before  or  at  the  delivery  of  the  cargo,  or  even  if  it  does  not 
appear  that  the  delivery  of  the  cargo  is  to  precede  such  pay- 
ment." In  that  case  it  was  held  that  the  stipulation  that  the 
freight  should  be  paid  within  ten  days  after  the  vessel  returned 
to  the  port  of  departure  did  not  displace  the  lien,  as  the  de- 
livery of  the  cargo  might  be  rightfully  postponed  beyond  the 
ten  days  after  the  return  of  the  ship. 

§  360.  The  lien  for  freight  exists  in  favor  of  the  final  carrier, 
although  the  first  carrier  has  given  a  receipt  saying  "  freight 
charges  paid  through,"  if  in  fact  he  receives  the  goods  without 
knowing  this  and  only  a  part  of  his  charges  have  been  paid.' 
Where  goods  are  erroneously  billed  by  the  first  carrier  acting 
as  the  shipper's  agent  and  so  carried  to  a  wrong  place,  the  last 
carrier,  having  advanced  previous  charges,  has  a  lien  therefor 
and  for  the  freight  earned.* 

§  361.  Freight  and  of  course  the  lien  therefor,  are  lost  if  the 
bill  of  lading  stipulates  for  the  delivery  of  the  goods  in  like 
good  condition  as  when  received  and  they  are  injured  by  the 
negligence  or  want  of  skill  of  the  carrier.* 

§  362.  One  person's  goods  cannot  without  his  consent  be 
made  liable  for  charges  for  the  goods  of  another,  even  though 
they  are  shipped  under  the  same  bill  of  lading.^  In  Leaf  v. 
Canada  Shipping  Company,^  the  question  was  as  to  the  liability 


'  The  Volunteer,   1    Sumner,   551  ;  '  Humphreys  v.  Reed,  6  Wheaton, 

The  Bird  of  Paradise,  5  Wall.  545.  435. 

M  Sumner,  551.   See  How  y.  Kirch-  ^  jiale    v.     Barrett,    26     111.     195; 

ner,  4  Can.  Law  Jour.  (O.  S.)  121.  Bishop   v.  Empire  T.   Co.,  33  N.  Y. 

*  Wolf  V.  Hough,  22  Kansas,  659  ;  Superior  Court,  99. 

Gracie  v.  Palmer,  8  Wheaton,  605.  ^  1  Legal  News,  218  (Canada). 

«  Briggs  V.  B.  &  L.  R.  R.  Co.,  6 
Allen  (88  Mass.),  246. 
272 


CHAP.  XXVII.]      STIPULATIONS  AS  TO  PAYMENT  OF  FREIGHT.      [§  363. 

of  goods  to  the  carriers,  not  for  the  freight  thereon,  but  for  a 
previous  debt  of  the  intermediate  shipping  agents.  The  carriers 
(in  this  instance,  the  Canada  Shipping  Company)  claimed  a  lien 
on  certain  goods  for  a  debt  due  to  them  by  the  agents  through 
whom  the  goods  were  shipped.  The  bill  of  lading  stipulated 
that  "  the  owners  or  agents  of  the  line  have  a  lien  on  the  goods, 
not  only  for  freight  and  charges  herein,  but  for  all  previously 
iinsatistied  freights  and  charges  due  to  them  by  the  shipper  or 
consignee.''  The  freight  claimed  from  the  plaintiffs  and  paid 
by  them  under  protest,  was  not  due  for  goods  owned  or  shipped 
by  them  at  all,  but  which  had  been  shipped  by  the  same  agents 
for  other  parties.  The  court  held  that  in  the  absence  of  specific 
proof  of  a  particular  mode  of  dealing  between  the  plaintiffs 
and  the  defendants,  the  former  could  not  be  held  liable  for  the 
debt  of  other  people,  under  the  stipulations  of  the  bill  of  lading. 

The  carrier's  lien  for  freight  and  charges  is  not  invalid 
because  he  claims  more  than  is  due.^ 

§  363.  The  master  of  a  vessel  is  usually  entitled  by  the  terms 
of  the  bill  of  lading  to  receive  the  freight  money  and  he  has 
the  right  to  retain  the  goods  until  it  is  paid.^  The  master 
of  a  ship  has  no  power,  under  his  general  authority,  to  draw 
bills  of  lading  making  the  freight  payable  to  any  other  than 
the  owner.  In  Reynolds  v.  Jex,^  a  ship  was  chartered  out  and 
home  for  a  lump  sum,  bills  of  lading  to  be  signed  by  owner  or 
agent  at  any  rate  of  freight  without  prejudice  to  the  charterer. 
At  an  outward  port,  the  agents  of  the  charterers  advanced 
money  to  the  master  for  the  ship's  use,  on  condition  of  the  ship 
taking  goods  on  the  return  voyage  under  bills  of  lading  making 
the  freight  payable  to  them  (the  agents)  or  their  assigns  at  the 
port  of  delivery.  Goods  were  put  on  board  and  bills  of  lading 
given  accordingly  by  the  master.  It  was  held  that  the  master 
had  no  authority  to  make  such  bills  of  lading  and  that  the 
ship-owner  retained  his  lien  on  the  goods  for  freight.  When 
there  is  added,  at  the  carrier's  request,  to  the  usual  clause 
relating  to  the  payment  of  freight  by  the  consignee,  a  stipula- 
tion that  it  shall  be  paid  to  a  third  person,  as  for  instance, 

1  Hoytj;.  Sprague,  GlBarb.  (N.Y.)  «  Lewis  v.  Hancock,  11  Mass.  72; 
497  ;  B.  &  L.  H.  Ry.  Co.  v.  Gordon,  Keith  v.  Murdock,  2  Washington,  297. 
16  U.  C.  Q.  B.  283.  8  34  L.  J.  Q.  B.  251. 

18  •  273 


§  364.]  BILLS   OF   LADING.  [CHAP.  XXVII. 

"  freight  payable  to  A.  B.,"  A.  B.  must  be  on  hand  to  receive 
it.  If  he  is  not  present,  and  the  goods  are  delivered  to  the 
consignee,  who  subsequently  fails,  the  carrier  cannot  recover 
his  freight  from  the  shipper.^ 

§  364.  Whoever  receives  cargo  from  a  vessel  under  a  bill  of 
lading,  in  the  absence  of  circumstances  showing  a  different 
understanding,  is  liable  for  the  freight.^  In  Phila.  and  Reading 
R.  R.  Co.  V.  Barnard,^  a  cargo  of  coal  was  shipped,  deliverable 
to  the  shippers  or  their  assigns.  Before  its  delivery  from  the 
vessel  it  was  sold  to  one  B.  who  received  part  of  it,  paid  to  the 
owners  of  the  vessel  freight  on  what  he  received  and  refused 
to  receive  any  more.  The  rest  was  then  sold  to  respondents, 
who  received  no  indorsement  or  delivery  of  the  bill  of  lading, 
but  received  the  coal  from  the  vefesel,  gave  a  receipt  for  it 
upon  the  captain's  bill  of  lading  and  gave  B.  two  notes,  one 
for  the  price  of  the  coal  and  one  for  the  freight,  which  B. 
agreed  to  see  paid,  but  which  he  failed  to  pay  and  died  insol- 
vent. It  was  held  that  the  respondents  were  liable  to  the 
owners  of  the  vessel  for  the  freight  on  the  coal  which  they 
received.  In  Hatch  v.  Tucker,^  A.  loaded  B.'s  vessel  with  coal 
consigned  to  C.  A  dispute  arising  between  A.  and  the  master 
of  the  vessel  as  to  a  charge  made  by  A.  for  trimming  the 
cargo,  the  master  refused  to  sign  the  bill  of  lading  and  sailed 
without  doing  so.  The  coal  was  accepted  by  C.  It  was  held 
that  C.  was  liable  for  the  freight  and  could  not  deduct  the 
charge  made  b}'  A.  In  Ferguson  v.  Domville,'  the  shipper 
sent  the  bill  of  lading  to  a  party  without  indorsing  it  to  him. 
The  carrier  refused  to  deliver  the  goods  although  he  tendered 
freight,  unless  he  procured  an  indorsement.  The  holder  re- 
gained possession  by  replevin.     The  carrier  then  brought  an 

'  Thomas     v.     Snyder,     3    AVright  559  ;  Shackleford  v.  Wilcox,  9  ib.  33  ; 

(Pa.),  317.  Davison  v.  City  Bank,  57  N.  Y.  81  ; 

*  Merianu.  Funck,  4  Denio  (N.  Y),  Canfield  v.  Northern  R.   R.  Co.,   18 

110;    Shaw    r.     Thompson,    Olcott,  Barb.  (N.  Y.)  586 ;  Weguelin  y.  Cel- 

144;  Fowler  v.  Meikelham,   7  Lower  lier,  L.  R.  6  H.  L.  286. 

Canada  (Q.  B.),  367  ;  Abbe  v.  Eaton,  »  3  Ben.  39. 

51    N.    Y.  411;    McGrevy   v.   Rath-  "  12  R.  I.  501. 

bone,  11  Upper  Canada  (C.  P.),  186;  ^  3  p  &  jj    (N.  B.)  576. 
Perret  v.  Sauvinet,  2  La.  Ann.  Rep. 

274 


CHAP.  XXVII.]      STIPULATIONS  AS  TO  PAYMENT  OF  FREIGHT.      [§  366. 

action  against  him  for  the  freight,  which  he  had  then  refused 
to  pay.  It  was  held  that  a  contract  to  pay  the  freight  might 
be  implied  from  the  circumstances. 

§  365.  Where  the  consignee  before  delivery  of  the  goods 
indorses  the  bill  of  lading  to  other  parties,  who  receive  the 
property,  the  consignee  is  not  liable  for  the  freight.^  If,  how- 
ever, the  person  to  whom  the  bill  of  lading  is  indorsed  is  a 
mere  agent  for  the  consignee,  the  consignee  cannot  relieve  him- 
self of  liability  for  the  freight,  without  the  consent  of  the 
carrier.  In  Lewis  v.  McKee,^  an  action  was  brought  by  ship 
owners  against  a  consignee  for  freight.  It  appeared  that  before 
the  ship  arrived,  the  consignee  indorsed  the  bill  of  lading  to 
W.  &  K.,  wharfingers,  but  not  so  as  to  pass  the  property.  The 
indorsement  was  as  follows:  "Deliver  to  AV.  &  K.,  or  order, 
looking  to  them  for  all  freight,  dead  freight  and  demurrage, 
without  recourse  to  us."  The  plaintifis  delivered  the  goods  to 
"VV.  &  K.  It  was  admitted  that  the  defendant  would  have  been 
liable  to  W.  &  K.  for  any  freight  paid  by  them.  The  court 
held  that  as  the  defendant  was  at  the  time  of  the  alleged  in- 
dorsement liable  for  the  freight,  he  was  bound  to  prove  an 
assent  of  the  plaintifls  to  his  discharge  from  that  liability. 

§  366.  The  assignee  of  a  bill  of  ladins;  for  value,  who  receives 
the  property  mentioned  in  it,  is  liable  for  the  freight.  In  Trask 
V.  Duvall,^  Mr.  Justice  Washington  in  charging  the  jury,  said: 
"  The  assignee  of  a  bill  of  lading,  for  a  valuable  consideration, 
who  receives  the  property  mentioned  in  it,  is  liable  to  the 
owner  of  the  ship  for  the  freight.  This  arises  from  the  terms 
of  the  bill  of  lading,  which  contains  an  engagement  by  the 
master  and  the  shipper,  to  deliver  the  goods  to  the  consignee, 
or  to  his  assigns,  he  or  they  paying  freight  for  the  same.  The 
consignee  is  not  bound  to  receive  them  ;  but  if  he  does  receive 
thera,  he  makes  himself  a  party  to  the  contract,  and  the  law 
raises  a  promise  on  his  part  to  perform  the  condition  on  which 
alone  the  delivery  was  to  be  made  to  him.  The  engagement  of 
his  assignee  is  precisely  the  same.  The  delivery  is  to  be  to 
him,  he  paying  freight." 

1  Meriant;.  Funck,  4Denio(N.Y.),         «  l.  R.  2  Exch.  37.     S.  C.  L.  R. 
110;  4  ib.  58. 

8  4  Washington,  181. 

275 


§  368.]  BILLS   OF   LADING.  [CHAP.  XXVII. 

§  367.  Where,  however,  the  assignees  of  the  bill  of  lading 
are  merely  the  agents  of  the  owners  of  the  cargo,  they  are .  not 
personally  liable  to  pay  the  freight  in  the  absence  of  an  agree- 
ment to  the  contrary.*  In  Ackerman  v.  Redfield,''  which  was 
an  action  for  freight  against  an  intermediate  consignee,  not 
named  in  the  bill  of  lading  except  in  the  direction  for  delivery, 
the  court  said,  "  It  is  not  the  mere  receipt  of  goods  by  a  person 
who  is  not  the  owner  with  the  knowledge  that  they  are  subject 
to  a  charge  of  freight  that  will  bind  him  to  pay  it ;  but  if  he 
receives  the  goods  in  pursuance  of  a  bill  of  lading,  making  the 
payment  of  freight  a  condition  precedent  to  the  delivery,  or  if 
he  has  notice  from  the  master  that  if  he  takes  the  goods,  he 
must  take  them  subject  to  the  charge,  he  will  be  liable  to  pay 
it.  But  a  person  who  is  only  agent  for  the  consignee,  and  who 
is  known  to  the  master  to  be  acting  in  that  character,  does  not 
make  himself  personally  answerable  for  the  freight  by  receiving 
the  goods."  Dart  v.  Ensign^  was  an  action  for  freight  against 
an  intermediate  consignee,  an  agent  of  the  owner  to  receive  the 
goods  for  the  carrier  and  to  forward  them  to  their  ultimate 
destination.  He  had  no  property  in  the  goods,  no  agreement 
by  him  to  pay  the  freight  was  shown,  no  claim  was  made  upon 
him  by  the  plaiutitf,  nor  was  any  notice  given  of  any  claim  or 
lien.  The  bill  of  lading  consigned  the  property  to  the  care  of 
the  defendant  for  the  owner  and  the  agency  was  known  to  the 
carrier.  The  defendant  was  not  liable  for  the  freight  and  no 
promise  to  pay  it  was  implied  from  the  bill  of  lading. 

§  368.  The  original  shipper  of  goods  under  an  ordinary  bill 
of  lading  remains  liable  to  the  master  of  the  vessel  for  the 
freight  earned,  though  the  latter  delivers  the  goods  to  the  con- 
signee, without  exacting  payment  thereof;  and  this,  even  where 
the  consignee  ofiers  to  pay  the  freight  and  the  captain  refuses 
to  receive  it.^    If  the  master  "  sees  fit  to  waive  the  right  of 

»  Elwell  V.  Skiddy,  77  N.  Y.  282.  «  Q,\\^or\  v.  Madden,  1  Lansing  (N. 

2  9  Hun  (N.  Y.),  378;  Bickford  v.  Y.),  172;  Jobbitt  v.  Coundry,  29 
Herr,  18  Lower  Canada,  Juris.  (Q.  Barb.  (N.  Y.)  509;  Blanchard  v. 
B.)  169.  Page,  8  Gray  (Mass.),  281  ;  MeEwen 

3  47  N.  Y.  619.  V.  J.  M.  &  I.  R.  R.  Co.,  3,3  Ind.  369. 

276 


CHAP.  XXVII.]    .STIPULATIONS  AS  TO  PAYMEN'f  OF  FREIGHT.      [§369. 

lien  and  to  deliver  the  goods  without  payment  of  the  freight, 
his  right  to  resort  to  the  shipper  for  compensation  still  remains."^ 
§  369.  It  has  been  held  that  where  a  bill  of  lading  contains 
the  clause  "  he  (the  consignee)  paying  the  freight"  or  that  the 
goods  be  delivered  "  on  presenting  this  receipt  and  payment  of 
the  freight,"  that  this  is  introduced  for  the  benefit  of  the  car- 
rier and  does  not  exempt  the  consignor  from  liability.^  In 
Collins  V.  Union  Trans.  Co.,^  a  bill  of  lading  contained  the 
clause  "  we  promise  to  deliver  to  A.  and  B,,  upon  presenting 
this  receipt  aM  payment  of  freight,  etc."  The  consignors  paid 
A.  and  B.  the  amount  of  the  freight  and  they  failed  before 
paying  the  carrier,  who  then  sued  the  consignors.  It  was  held 
that  the  carrier  was  entitled  to  recover  the  amount  of  freight 
from  the  consignors  and  that  the  proviso  for  payment  was  not 
for  the  latter,  but  for  the  carrier's  benefit.  In  Barker  v.  Havens,* 
the  owner  of  goods  shipped  them  to  Liverpool,  the  bill  of  lad- 
ing saying,  "  to  be  delivered  to  C.  B.  &  Co.,  they  paying  freight 
for  the  same,  etc."  The  master  delivered  the  goods  at  Liverpool 
without  receiving  the  freight  from  the  consignee,  who  after- 
wards refused  to  pay  it.  An  action  was  held  maintainable 
against  the  consignor  therefor, — the  clause  in  the  bill  being 
simply  for  the  benefit  of  the  carrier.  In  Thomas  v.  Snyder,' 
a  shipper  consigned  coal  to  D.  or  his  assigns,  "he.  or  they 
paying  the  freight  for  the  said  coal,"  directing  in  the  bill  of 
lading,  at  the  request  of  Thomas,  the  owner  of  the  vessel  in 
which  the  coal  was  shipped,  "  freight  payable  to  P.  D.  Thomas." 
Then  the  coal  was  delivered  to  the  assigns  of  D.,  who  were  at 
the  time  willing  and  able  to  pay  the  freight.  Neither  Thomas 
nor  his  agent,  nor  any  one  for  him,  was  present  to  receive  it 
and  by  the  subsequent  failure  of  the  assignees  it  was  lost.  In 
an  action  hy  Thomas  against  the  shipper  of  the  Cargo,  to  re- 
cover the  freight,  it  was  held  that  it  was  not  error  in  the  court 
to  instruct  the  jury  that  if  they  found  these  facts,  their  verdict 
should  be  for  the  defendant,  the  court  saying,  by  Mr.  Justice 
Woodward,  "  that  a  party  who  insists  on  such  a  stipulation  in 

1  Worster  v.  Tarr,  8  Allen  (Mass.),  "  10  Watts  (Pa.),  384. 

270.  M7  Johnson  (N.  Y.),  234. 

*  Layng  v.  Stewart,  1  Watts  &  Sar-  ^  3  Wright  (Pa.),  317. 
geant  (Pa.),  222. 

277 


§  372.]  •    BILLS   OF   LADING.  [CHAP.  XXVII. 

a  bill  of  lading  should  be  at  hand  or  should  appoint  some  one 
to  receive  the  freight  at  the  proper  time  and  place  for  its  pay- 
ment is  not,  we  think,  an  unreasonable  rule  of  law." 

Where  the  shipper  is  impliedly  bound  from  the  face  of  the 
bill  to  pay  the  freight  of  goods,  it  is  allowable  to  show  that 
the  owner  of  the  boat  received  them  under  an  agreement  with 
a  third  person  to  pay  the  freight,  when  the  latter  has  paid  it.^ 

§  370.  Where  a  bill  of  lading  says  "  we  promise  to  deliver 
to  A.  and  B.,  upon  presenting  this  receipt  and  payment  of 
freight,"  etc.,  this  proviso  for  prepayment  is  not  for  the  con- 
sio-nor,  but  for  the  carrier's  benefit  and  if  the  consignees  fail 
to  pay  the  consignor  must  do  so.*  The  usual  clause  in  a  bill  of 
lading  making  the  payment  of  freight  by  the  consignee  a  con- 
dition of  the  delivery  of  the  goods,  is  inserted  for  the  benefit 
of  the  carrier.' 

§  371.  In  the  English  case  of  Green  v.  Sichel,*  the  carrier 
refused  to  give  a  bill  of  lading  or  other  document  giving  evi- 
dence of  the  goods  being  on  board  his  ship  unless  the  freight 
were  previously  paid.  Though  this  was  not  one  of  the  points 
decided,  yet  the  carrier's  action  seems  to  have  been  acquiesced 
in  as  legal  and  proper. 

§  372.  As  a  general  rule  where  the  amount  of  the  freight  is 
specified  in  the  bill  of  lading,  no  greater  amount  can  be  de- 
manded for  the  transportation  of  the  goods.  In  the  case  of 
the  "  406  Hogsheads  of  Molasses,'"^  a  libel  in  rem  was  filed 
against  certain  hogsheads  of  molasses,  to  recover  freight  under 
a  charter  party.  The  vessel  was  chartered  by  Gordon  for 
a  specified  sum.  P.  shipped  certain  molasses,  which  he  had 
sold  to  Gordon.  The  bill  of  lading  therefor  was  signed  by 
the  master,  providing  for  delivery  to  the  order  of  P.,  at  a 
specified  rate  of  freight  and  contained  at  its  foot  the  words, 
"  Without  prejudice  to  charter  party."  Afterwards  R,  ad- 
vanced, on  the  security  of  the  bill  of  lading,  money  to  take 
up  the  drafts  drawn  on  Gordon  for  the  price  of  the  molasses 

^  Wayland  17.  Mosely,  5  Ala.  430.  *  7  C.  B.  (N.  S.)  747;   6  Jur.   (N. 

2  Collins  V.  Union  Transp.  Co.,  10  S.)  827;  29  L.  J.  (C.  P.)  213;  8  W. 
Watts  (Pa.),  384.  R.  (C.  P.)  663. 

3  Canfield  v.  Northern  R.  R.   Co.,  ^  A  Blatcli.  319. 
18  Barb,  (N.  Y.),  586. 

278 


CHAP.  XXVIL]      STIPULATIONS  AS  TO  PAYMENT  OF  FREIGHT.      [§  375. 

and  took  an  assignment  of  the  bill  of  lading.  It  was  held  that 
the  molasses  was  liable  only  for  the  freight  specified  in  the  bill 
of  lading. 

Dray  tickets  were  by  mistake  signed  for  a  shipper's  goods 
at  30  cents  per  hundred  by  a  steamboat  clerk  and  on  liis  re- 
fusal to  sign  bills  of  lading  at  the  same  rate,  the  shipper  de- 
manded to  have  the  goods  put  on  shore.  The  carrier  refused 
and  went  on  and  transported  them  to  destination.  This  action 
of  the  carrier  was  held  to  be  an  assent  or  agreement  by  it  to 
transport  at  the  rate  of  30  cents  per  hundred  and  it  was  not 
entitled  to  recover  more  than  that  amount.^ 

§  373.  Where  freight  is  by  the  bill  of  lading  payable  at  a 
certain  rate  per  ton,  "  nett  weight  delivered,"  the  carrier  has 
no  right  to  demand  freight  upon  the  amount  named  in  the  bill 
of  lading,  larger  than  the  quantity  actually  delivered.^ 

§  374.  It  is  not  necessary  that  the  freight  to  be  paid  be  ex- 
pressed in  the  bill.  A  promise  on  the  part  of  the  shipper  to  pay 
reasonable  freight  is  implied  in  law.^  In  Holford  v.  Adams"  an 
express  company  carried  a  package  containing  $40,000  of  bonds. 
On  arriving  at  the  place  of  destination  it  refused  to  deliver  the 
bonds  except  on  payment  of  $400,  one  per  cent,  of  the  value  of 
the  package.  It  was  held  that  under  the  terms  of  the  contract, 
whereby  the  carrier  was  not  to  be  liable  for  loss  or  damage, 
except  so  far  as  due  to  fraud  or  gross  negligence,  there  was  no 
reason  for  enhancing  the  charge  in  proportion  to  the  value  of 
the  articles  transported  and  this  charge  was  prima  facie  unrea- 
sonable. It  could  not  be  justified  by  proof  of  a  usage,  not 
general,  but  of  this  carrier  only. 

§  375.  A  bill  of  lading  provides  that  the  carrier  is  to  carry  and 
deliver  in  good  order  and  if  the  goods  conveyed  are  damaged, 
the  consignee  may  withhold  the  amount  out  of  the  price  to 
be  paid  as  freight.^  Against  a  claim  for  freight  the  consignee 
may  set  up  a  counterclaim  for  damages  for  non-delivery  of  the 
residue  of  the  quantities  sj^ecified  in  the  bill  of  lading  and  not 

'  Wood  V.  Str.  Fleetwood,  27  Mo.  *  2  Duer  (N.  Y.),  471. 

^^^-  °  Boggs    V.    Martin,    13    B.    Mon. 

2  Coulthurst  V.  Sweet,  1  L.  R.  C.  P.  (Ky.)    239  ;  Libby  v.  Gage,  14  Allen 

^'^^-  (Mass.),  261  ;  The  Tangier,  32  Fed. 

»  Gray  v.  Mo.  River  Packet  Co.,  64  Rep.  230. 

Mo.  47.  279 


I  378,]  BILLS   OF   LADING.  [CHAP.  XXVII. 

actually  received.*  In  England,  a  consignee  of  goods,  or  an 
indorsee  of  a  bill  of  lading,  lias  no  right  to  have  the  value  of 
missing  goods  deducted  from  the  freight  payable,  in  respect  of 
the  o-oods  delivered  and  no  custom  of  merchants  inconsistent 
with  this  rule,  or  law  of  a  foreign  country  making  an  allowance 
in  such  a  case  by  way  of  set-off,  will  be  recognized.^ 

§  376.  Where  goods  are  shipped  at  an  agreed  price  of  freight 
and  part  are  delivered,  at  defendant's  request,  at  a  point  short 
of  destination,  but  without  any  waiver  by  the  carrier  of  his 
claim  for  full  freight,  the  defendant  is  liable  for  the  full  freight, 
as  much  p,s  if  the  goods  had  been  carried  to  the  original  point 
of  destination.^ 

§  377.  Where  goods  are  shipped  as  of  an  inferior  class,  but 
are  really  of  a  superior  class,  the  carrier  is  entitled  to  recover 
the  usual  rate  for  the  superior  class.*  Thus  where  sewing-ma- 
chines were  shipped  as  "hardware,"  it  was  held  that  when  the 
true  character  of  the  goods  was  discovered,  the  railroad  agent 
had  the  right  to  bill  them  truly  and  charge  the  freight  at  the 
higher  rate  authorized  by  the  company's  regulations.' 

§  378.  Under  an  ordinary  bill  of  lading,  freight  is  only  de- 
mandable  by  the  owner,  master,  or  consignee  of  the  ship  when 
they  are  ready  to  deliver  the  goods  in  the  like  good  order  as 
they  were  when  they  were  received  on  board  the  ship®  and 
freight  can  only  be  demanded  when  the  goods  are  discharged 
from  the  vessel  and  the  consignee  has  had  a  reasonable  oppor- 
tunity to  examine  into  their  condition.^ 

Neither  the  carrier  nor  the  consignee  can  require  that  goods 

^  Byrne   v.  Weeks,    4   Abb.    Dec.  *  Sumner  r.  Southern  R.  R.  Ass., 

(N.   Y.)  657;    Hinsdell  v.    Weed,   5  7  Baxter  (Tenn.),  345. 

Denio  (N.  Y.),  172.  ^  Brittan  v.  Barnaby,   21   Howard, 

2  Mayer  w.  Dresser,  10  Can.  L.J.  527;  The  Velona,  3  Ware,  139; 
(O.  S.)  308  ;  Mayer  v.  Dresser,  16  C.  Humphreys  v.  Reed,  6  Wharton  (Pa.), 
B.  (N.  S.)  646 ;  Allen  v.  Chisholm,  435 ;  Thomas  v.  Snyder,  3  Wright 
33  Upper  Canada,  Q.  B.  237;  The  (Pa.),  317;  Rowlands.  Miln,  2  Hilt 
Norway,  8  Moore  P.  C.  C.  (N.  S.)  (N.  Y.),  150;  Gauche  v.  Storer,  14 
245.  La.  Ann.  Rep.  411. 

3  Ellis  V.  Willard,  9  N.  Y.  529.  ^  Vitrified  Pipes,   14  Blatch.    274 ; 
*  Rice  f.  Indianapolis,  etc.,  R.  R.     Black  v.  Rose,  2  Moore  P.  C.  (N.  S.) 

Co.,  3  Mo.  Appeal  Rep.  27.  277  ;    Certain  Logs   of  Mahogany,   2 


Sumner,  589. 


280 


CHAP.  XXVII.]      STIPULATIONS  AS  TO  PAYMENT  OF  FREIGHT.      [§  380. 

shipped  under  one  bill  of  lading  shall  be  divided  and  delivered 
in  parcels  on  separate  payment  of  freight  for  each  parcel.^ 

The  owners  of  a  vessel  can  recover  on  an  implied  assumpsit 
against  the  consignee  named  in  the  bill  of  lading  on  his  re- 
ceiving the  property  shipped.  If  a  part  of  the  property  be 
lost  in  the  course  of  the  voyage  and  the  consignee  accept 
the  residue,  he  becomes  liable  to  pay  freight  p-o  mto,  but 
may  recoup  the  damage  for  property  not  delivered  in  an  action 
against  him  for  freight.  If,  however,  the  directions  of  the  con- 
signors to  the  consignee,  as  contained  in  or  annexed  to  the 
bill  of  lading,  be  to  pay  freight  only  on  delivery  of  all  the 
property  shipped,  the  delivery  of  the  whole  will  be  a  condition 
precedent  to  the  recovery  of  freight  against  the  consignee, 
though  he  receive  and  accept  a  part.^ 

§  379.  If  a  bill  of  lading  stipulates  that  the  freight  is  earned 
whether  the  goods  arrive  or  not,  the  shippers  are  liable  for  the 
freight  f  and  the  master  is  entitled  to  full  freight  on  all  the 
goods  laden  and  borne  on  the  bill  of  lading,  though  they  may 
be  by  natural  causes  and  without  his  fault,  diminished  in  quan- 
tity when  delivered.* 

Although  freight  is  not  payable  in  respect  of  a  man's  own 
goods  conveyed  in  his  own  ship,  it  becomes  so  if  he  makes  third 
persons,  who  have  advanced  him  money,  the  consignees  of  the 
goods  and  the  goods  are  by  the  bill  of  lading  deliverable  to  the 
order  of  such  persons.'' 

§  380.  In  the  following  cases  certain  peculiar  provisions  in 
bills  of  lading  in  reference  to  freight  are  considered.  In  Krall 
V.  Burnett,^  "  freight  payable  in  London"  means  that  it  is  pay- 
able there  and  not  elsewhere  and  has  ,no  reference  to  the  time 
of  payment.  Evidence  is  not  admissible  to  explain  the  phrase 
so  as  to  make  it  by  custom  mean  "  freight  payable  in  advance 
in  London."     In  Jones  v.  Hoyt,' a  bill  of  lading  of  lumber 

1  Vitrified  Pipes,  14  Blatch.  274;  ^  Murray  v.  Head,  3  Legal  News 
Brittan  v.  Barnaby,  21   Howard,  527.  (Canada),  47. 

2  Hinsdell  v.  Weed,  5  Denio    (N.         *  Steelman  v.  Taylor,  3  Ware,  52. 
y,),  172;  The  Nathaniel  Hooper,   3         ^  Weguelin  v.  Cellier,  L.  R.  6  H. 
Sumner,    512;     Perkins    v.    Hill,    1  L.  286. 

Sprague,  123.  •  25  W.  R.  305. 

'  23  Conn.  157. 

281 


§  381.]  BILLS   OP  LADING.  [CHAP.  XXVII. 

contained  a  provision  that  the  lumber  should  be  measured  and 
piled  on  deck  at  the  port  of  delivery.  Part  of  it  was  unloaded 
and  measured  on  the  wharf.  ISTotwithstanding  this  breach  of 
stipulation,  the  carrier  was  entitled  to  freight.  The  stipulation 
was  not  a  condition  precedent,  but  merely  an  agreement  for 
convenience,  and  in  view  of  the  consignee's  death  before  arrival, 
and  the  failure  of  his  representatives  to  accept  the  goods,  it 
became  unimportant. 

§  381.  In  Davison  v.  Gwynne,^  the  master  of  a  vessel  cove- 
nanted with  a  freighter  that  the  vessel  should  proceed  with  the 
first  convoy  from  England  for  Spain  and  Portugal,  or  either,  as 
he  should  be  directed  by  the  freighter  or  his  agents,  and  there 
make  a  right  and  true  delivery  according  to  the  bills  of  lading 
signed  for  the  same,  etc.  The  freighter  first  ordered  the  master 
to  proceed  to  Lisbon,  in  consequence  of  which  he  took  in  goods 
and  signed  bills  of  lading  for  that  port.  It  was  held  that  sail- 
ing with  the  first  convoy  was  not  a  condition  precedent  to  the 
recovery  of  freight  by  the  master,  and  that  the  master  was 
entitled  to  recover  freight  as  upon  a  right  and  true  delivery  of 
the  cargo,  agreeably  to  the  bills  of  lading,  upon  proof  of  having 
delivered  the  entire  number  of  chests,  etc.,  called  for  by  the 
bills,  though  it  appeared  that  their  contents  were  damaged  by 
negligence,  the  injured  party  having  his  remedy  by  action  for 
such  negligence.  In  Murphy  i\  Creighton,^  a  carrier  company 
contracted  to  ship  a  certain  party's  goods  to  certain  points  at 
rates  "  same  as  lowest  to  points  named."  It  was  held  that  the 
fair  construction  of  this  is  that  the  rates  to  each  point  were  to 
be  as  low  as  the  lowest  to  that  point  and  not,  for  example,  that 
said  party  should  have  r^tes  to  the  most  distant  one  as  low  as 
the  lowest  rates  for  some  one  else  to  a  nearer  point. 

In  Southern  Ex.  Co.  v.  Womack,^  the  fact  that  freight  was  to 
be  paid  in  Confederate  money,  an  illegal  currency,  would  not 
afiect  the  carrier's  liability  for  loss  or  failure  to  carry. 

1  12  East,  381  (K.  B.).  ^  1  Heiskell  (Tenn.),  256. 

«  45  Iowa,  179. 

282 


CHAP.  XXVIII.]      STIPULATIONS   RELATING   TO   DELIVERY.  [§  382. 


CHAPTER  XXVIII. 

STIPULATIONS   RELATING  TO  DELIVERY— GOODS   SHIPPED 
C.  O.  D.— CLAIM  FOR  LOSS  WITHIN  LIMITED  TIME. 


Carrier's  duty  under  a  bill  for   goods 

shipped  "C.  O.  D.,"  §§  382,  383, 

384,  385. 
Claim  for  loss   to   be   made  within  a 

limited  time,  §§  386,  387,  388. 
Effect  of  a  notice  on  the  back  of  the 

carrier's  receipt,  §  389. 
Claim  to  be  made  before  the  removal 

of  the  goods,  §  390. 


Claim  to  be  made  at  a  particular  office, 
§391. 

Claim  for  non-delivery  is  not  covered 
by  "  loss  or  damage,"  §  392. 

Claim  to  be  made  in  thirty  days  held  to 
be  a  reasonable  limitation,  §  393. 

Consideration  of  the  clause  limiting 
time  for  claim,  in  England,  §  394. 

Consideration  of  clauses  of  similar  im- 
port, §§  395,  396. 


§  382.  Where  goods  are  sent  "  C.  0.  D."  the  carrier  has  no 
right  to  deliver  them  to  the  consignee  till  they  are  paid  for.* 
The  consignee  is  entitled  to  a  reasonable  opportunity  to  inspect 
before  accepting  them  and  the  carrier  may  afford  him  rea«ou- 
able  facilities  for  doing  so  without  making  himself  chargeable 
for  the  price,  even  if  he  put  them  into  the  hands  of  the  con- 
signee for  that  purpose  and  receive  from  him  the  price  as  per- 
sonal security  to  the  carrier  that  the  goods  shall  be  returned,  if 
not  accepted,  after  a  reasonable  opportunity  to  examine  them.^ 
The  shipper  may,  however,  stipulate  that  there  shall  be  no  in- 
spection of  the  goods  before  delivery  and  payment.'  The  let- 
ters "  C.  0.  D."  have  acquired  in  the  commerce  of  the  country 
such  a  fixed  and  determinate  meaning  that  courts  and  juries, 
from  their  general  information,  will  readily  understand  them, 
but  parol  evidence  is  admissible  to  prove  their  meaning.* 
Where  goods  are  marked  "C.  0.  D."  the  contract  of  the  carrier 
in  connection  therewith  is  not  only  for  the  safe  carriage  and 
delivery  of  the  goods  to  the  consignee  but  he  further  contracts 


1  Weed  V.  Barney,  45  N.  Y.  344. 
^  Lyons  v.  Hill,  5  Am.  Law  Reg. 
(N.  S.)  698. 


3  Wiltse  y.  Barnes,  46  Iowa,  210. 
*  Am.  Ex.  Co.  V.   Lesem,  39   111. 
312. 

283 


§  384.]  BILLS    OF   LADING.  [CHAP.  XXVIII. 

with  the  consignee  that  he  will  collect  on  delivery  and  return 
to  the  consignee,  the  charge.  If  the  carrier,  on  such  a  contract, 
returns  neither  the  goods  nor  the  charges  thereon  to  the  con- 
signor, the  latter  may  sue  him.^ 

§  383.  Where  goods  were  sent  to  be  delivered  on  payment  of 
$1665  and  were  delivered  without  payment,  the  carrier  was  held 
liable  for  what  was  not  paid  by  the  consignee.  It  made  no 
difference  that  $1665  were  more  than  the  amount  coming  to 
consignor,  nor  would  it  have  njade  any  difference  whether  or 
not  said  sum  had  anything  at  all  to  do  with  the  price  of  the 
goods.  The  carrier  had  no  interest  therein  except  to  see  that 
the  condition  was  complied  with.*  Where  a  bill  of  lading 
says  "charges  to  be  collected,  $274.40,"  its  plain  and  reasonable 
intent  is  that  the  charges  are  to  be  collected  by  the  carrier  and 
if  he  delivers  the  goods  without  doing  so,  thereby  surrendering 
a  security  without  authority,  he  is  liable  for  the  charges  he 
assumed  to  collect.^ 

§  384.  An  express  company  carried  a  box  "  C.  0.  D."  and  re- 
ceived from  the  consignee  the  sum  charged.  The  box,  on 
being  opened,  proved  worthless — a  bald  swindle.  The  money 
was  returned  to  the  consignee.  It  was  held  that  if  by  reason 
of  the  fraud  of  the  consignors  the  consignee  becomes  entitled 
to  recall  the  payment  he  has  made  to  the  agent  for  the  use  of 
his  principals  (the  consignors),  he  may  recall  it  upon  notice  to 
the  agent  if  the  latter  has  not  paid  the  money  over  to  his  prin- 
cipals and  no  change  has  taken  place  in  his  situation  before  such 
notice.  It  is  clearly  the  duty  of  the  express  agent  to  pay  back 
the  money  on  discovery  of  the  fraud.  If  the  transaction  is  on 
the  part  of  the  consignors  a  bald  and  naked  swindle,  the  law 

1  U.  S.  Express  Co.  v.  Keefer,  59  Merch.  Union  Ex.  Co.  v.  Schier,  55 

Ind.  263;  Owen  v.  Johnson,  2  Ohio  111.  140;  Brooks  xk  Am.  Ex.  Co.,  14 

St.  142  ;  American  Merch.  Union  Ex.  Hun  (N.  Y.),  364  ;  Wareham  Bank 

Co.  V.  Wolf,   79   111.  430;    Am.  Ex.  v.  Burt,  5  Allen  (Mass.),   113;  Am. 

Co.  V.  Greenhalgh,  80  ib.  68;    Am.  Ex.  Co.   v.  Wettstein,    28   111.    App. 

Ex.  Co.  V.  Lesem,  39  ib.  312;  Hutch-  96. 

ings  V.  l;add,  16  Mich.  493  ;  CoUender  ^  Steamboat  John  Owen  v.  Johnson, 

V.  Dinsmore,  55  N.  Y.  200  ;   Pilgreen  2  Ohio  State,  142. 

V.  State,  71  Ala.  368;  Van  Winkle  v.  3  Meyer  y.  Lemcke,  31  Ind.  258. 
Adams  Ex.  Co.,  3  Robertson,  59  ;  Am. 

284 


CHAP.  XXVIII.]      STIPULATIONS   RELATING   TO   DELIVERY.  [§  386. 

will  lend  no  aid  in  the  collection  of  money  for  the  satisfaction 
of  such  a  claim.^  Where  the  carrier  sells  the  goods  carried  at 
their  destination  and  brings  back  the  proceeds,  the  original 
contract  of  carriage  applies  to  the  return  voyage.'^ 

§  385.  Where  goods  are  entrusted  to  a  common  carrier,  ac- 
companied by  a  bill  and  instructions  not  to  deliver  the  goods 
unless  paid  for  by  the  consignee,  he  is  liable  to  the  consignor 
for  a  delivery  without  exacting  payment.  By  thus  assuming 
to  act  with  the  goods  as  his  own,  he  is  answerable  for  their 
value,  but  he  may  discharge  himself  from  liability  by  procur- 
ing their  return.  An  indorsement  upon  the  bill,  "  Please  col- 
lect the  bill,"  is  a  mere  request  with  which  the  carrier  may  or 
may  not  comply  and  is  not  of  itself  sufficient  evidence  of  an 
undertaking  or  agreement  on  his  part  not  to  deliver  the  goods 
unless  paid  for.' 

§  386.  A  clause  is  frequently  inserted  in  bills  of  lading  re- 
stricting the  time  when,  and  fixing  the  place  where,  claims 
for  loss  are  to  be  made  to  the  carrier.  In  the  case  of  the  Ex- 
press Company  v.  Caldwell*  it  was  held  by  the  Supreme  Court 
of  the  United  States  that  a  condition  imposed  by  an  express 
company  that  it  shall  not  be  liable  for  any  loss  or  damage  to  a 
package  unless  claim  therefor  shall  be  made  within  ninety  days 
from  the  time  of  its  receipt  by  the  company,  is  lawful  and  bind- 
ing and  is  not  unreasonable  where  the  time  of  the  transit  of  the 
package  is  only  one  day.  The  claim  should  be  made  within 
ninety  days,  but  the  suit  may  be  brought  at  any  time  within 
the  statute  of  limitations.  Mr.  Justice  Strong,  in  delivering 
the  opinion  of  the  court,  says:  "A  common  carrier  is  respon- 
sible for  his  negligence,  no  matter  what  his  stipulations  may 
be ;  but  an  agreement  that,  in  case  of  failure  by  the  carrier  to 
deliver  the  goods,  a  claim  shall  be  made  by  the  bailor  or  by  the 
consignee  within  a  specified  period,  if  that  period  be  a  reason- 
able one,  is  altogether  of  a  different  character.     It  contravenes 

'  Herrick  v.  Gallagher,  60  Barbour  *  21  Wallace,  270.     See  also  Swin- 

(N.  Y.),  566.  burne  v.  Massue,  Stewart's  L.  C.  Rep. 

*  Harrington  v.  McShane,  2  Watts,  569  ;  Mason  v.  Grand  Trunk  Ry.  Co., 

443.                                                      "  37  U.  C.  Q.  B.  163;  Merrill  v.   Am. 

»  Hooker  V.  Gormer,  2  Hilt.  (N.  Y.)  Exp.  Co.,  62  N.  H.  514;  Kaiser  v. 

71.  Hoey,  16  N.  Y.  St.  Rep'r,  803. 

285 


I  388.]  BILLS   OF   LADING.  [CHAP.  XXVIII. 

no  public  policy.  It  excuses  uo  negligence.  It  is  perfectly 
consistent  with  holding  the  carrier  to  the  fullest  measure  of 
good  faith,  of  diligence  and  of  capacity  which  the  strictest 
rules  of  the  common  law  ever  required.  And  it  is  intrinsically 
just  as  applied  to  the  present  case.  The  defendants  are  an  ex- 
press company.  We  cannot  close  our  eyes  to  the  nature  of 
their  business.  They  carry  small  parcels  easily  lost  or  mislaid 
and  not  easily  traced.     They  carry  them  in  great  numbers." 

§  387.  Where  it  was  agreed  that  damages  to  stock  in  transit 
should  not  be  allowed  unless  notice  in  writing  of  a  claim  there- 
for should  be  given  to  the  company  at  or  before  unloading  the 
cattle  and  the  plaintiff,  knowing  of  an  injury  at  the  time,  gave 
no  notice  for  a  year,  it  was  held  that  the  contract  must  be  held 
good  unless  contrary  to  public  policy.  Unless  the  notice  were 
given  immediately  it  would  be  of  no  value  to  the  carrier,  there- 
fore the  time  when  it  was  to  be  given  was  not  unreasonable.^ 

In  Indiana,  where  a  bill  of  lading  stipulated  that  the  carrier 
should  not  be  liable  for  any  loss  unless  the  claim  therefor  should 
be  made  in  writing  at  the  office  of  shipment  within  thirty  days 
from  the  date  of  the  bill  and  the  complaint  filed  in  the  case 
did  not  allege  that  the  claim  for  such  loss  was  so  made,  it  was 
held  that  the  stipulation  that  the  claim  should  be  made  in  writ- 
ing within  the  time  specified  was  reasonable  and  that  in  such 
a  case  it  was  not  necessary  to  make  the  claim  at  the  office  of 
shipment.  It  might  be  made  upon  some  agent  or  officer  of  the 
company  chargeable  with  the  loss.^ 

§  388.  A  provision  that  carriers  shall  not  be  liable  for  loss  or 
damage  unless  the  claim  therefor  shall  be  presented  to  them  in 
writing  at  their  office  within  thirty  days  after  the  time  when 
the  property  has  or  ought  to  have  been  delivered  "  is  a  very 
reasonable  and  proper  provision  to  enable  the  defendants,  while 
the  matter  is  still  fresh,  to  institute  proper  inquiries  and  furnish 
themselves  with  evidence  on  that  subject.  The  defendants  do 
a  large  business  and  to  allow  suits  to  be  brought  against  them 

^  Goggin  V.  K.  P.  Ry.  Co.,  12  Kan-  Ind.  21,  it  was  held  that  the  require- 

sas,  416.  ment  that  a  claim  for  loss  should  be 

2  U.  S.  Ex.  Co.  V.  Harris,  51  Ind.  made  within  thirty  days  was  unreason- 

127.     In  the  same  State  in  the  earlier  able  and  void, 
case  of  Adams  Ex.  Co.  ?;.  Reagan,  29 

286 


CHAP.  XXVIII.]      STIPULATIONS   RELATING   TO    DELIVERY.  [§  390. 

without  such  notice  at  anj'  length  of  time  would  be  to  surrender 
them  bound  hand  and  foot  to  almost  every  claim  which  might 
be  made.  It  would  be  next  to  impossible,  where  a  thousand 
packages  large  and  small  are  forwarded  to  them  daily,  to  ascer- 
tain anything  about  the  loss  of  one  of  them  at  a  distance  of  six 
months  or  a  year."^  A  stipulation  that "  no  claim  for  deficiency, 
damage,  or  detention  would  be  allowed  unless  made  within  three 
days  after  delivery  of  the  goods  nor  for  loss  unless  made  within 
seven  days  from  the  time  they  should  have  been  delivered,"  has 
been  held  reasonable.^ 

§  389.  oSTotice  was  placed  on  the  back  of  a  receipt  for  goods  that 
the  carrier  should  not  be  liable  for  loss  or  damage  unless  notice 
were  given  twenty-four  hours  after  delivery  of  the  goods  and 
that  after  twenty-four  hours  from  arrival  storage  would  be 
charged.  The  goods  remained  several  days  and  were  damaged. 
In  a  suit  it  was  held  that  the  plaintiff  was  not  bound  by  the 
notice  although  brought  home  to  the  shipper  and  that  the  de- 
fendant could  not  so  limit  his  liability ♦^ 

In  Alabama  a  different  ruling  has  been  made  where  a 
receipt  given  by  a  carrier  stipulated  that  there  should  be  no 
liability  for  loss  unless  the  claim  should  be  made  in  thirty  days 
from  the  date  of  receipt  in  a  statement  to  which  the  receipt 
should  be  annexed.  The  plaintiff  was  not  informed  of  the  loss 
for  more  than  a  year.  The  stipulation  was  held  unreasonable, 
tending  to  fraud  and  inoperative  and  it  was  said  that  a  com- 
mon carrier  cannot  be  allowed  to  make  a  statute  of  limitation 
so  short  as  to  be  capable  of  becoming  a  means  of  fraud.^ 

§  390.  Where  in  consequence  of  the  carrier's  delay,  horses  in 
transit  became  ill,  it  was  held  that  a  clause  requiring  a  demand 
for  damages  to  be  made  before  removal  from  the  depot  is  in  such 
circumstances  unreasonable  and  void,  as  the  extent  of  the  ill- 
ness could  not  be  at  once  discovered.^    A  condition  in  a  bill  of 

'  Weirr.'ExpressCo.,  5  Phila.  Rep.  44  Ala.  101.     This  case  was  adversely 

355.     See  also  Express  Co.  u.  Hunni-  criticised  by  the  U.  S.  Supreme  Court 

cutt,  54  Miss.  566.  in  Express  Co.  v.  Caldwell,  21  Wall. 

«  Lewis  V.  Great  Western  R.E.  Co.,  270. 
5  Hurlstone  &  Norman,  867.  ^  Ormsby  v.  U.  P.  R.  R.  (U.  S.  C. 

«  Brown  v.  Railway,  54  N.  Hi  535.  C.  Colorado),  4  Fed.  Rep.  170. 

*  Southern  Express  Co.  v.  Caperton, 

287 


§  394.]  BILLS   OF   LADING.  [CHAP.  XXVIII. 

a  railroad  company  that  all  claims  for  damages  should  be  made 
before  the  article  was  taken  from  the  station,  ^as  held  in  North 
Carolina  to  be  reasonable,  but  that  it  did  not  cover  latent  inju- 
ries.* 

§  391.  A  reservation  in  an  express  company's  bill  that  all 
claims  for  damages  were  to  be  presented  at  the  New  York 
office  for  settlement,  was  held  not  to  make  such  presentation  of 
them  a  condition  precedent  to  the  company's  liability.  Their 
readiness  at  that  office  to  adjust  the  loss  went  only  in  defence 
of  interest  and  costs  and  not  to  the  cause  of  action.^ 

§  392.  Where  an  express  company  gave  a  receipt  for  goods 
containing  a  clause  exempting  it  "from  any  loss  or  damage 
whatever  unless  claim  shall  be  made  therefor  within  ninety 
days  from  the  delivery"  to  it,  it  was  held  that  the  clause  had 
no  application  to  a  suit  against  the  company  for  the  non-delivery 
of  the  goods  themselves, — that  not  being  either  for  "  loss  or 
damage."^  Such  a  clause  not  being  a  condition  precedent  to 
the  right  to  recover,  but.being  rather  in  the  nature  of  a  limita- 
tion, cannot  be  availed  of  upon  trial  unless  set  up  by  the  de- 
fendant in  his  answer.* 

§  393.  A  stipulation  in  the  bill  of  lading  that  the  carrier  should 
not  be  liable  for  loss  unless  a  written  claim  were  presented  in 
thirty  days  after  date  of  contract,  has  been  held  reasonable.'* 

§  394.  The  stipulation  in  a  bill  of  lading  "  that  claims  for 
short  delivery,  if  any,  as  well  as  every  and  all  other  claim  or 
claims  whatsoever  against  the  vessel,  must  be  made  within 
three  months  from  the  date  of  this  bill  of  lading,  at  the  port 
of  Calcutta,  and  at  no  other  port  and  no  such  claim  or  claims 
will  be  entertained  or  admitted  unless  supported  by  certificates 
signed  by  the  commander  of  the  vessel  before  leaving  the  port 
of  discharge,"  has  in  England  been  held  to  be  a  condition  pre- 
cedent to  the  institution  of  an  action  at  the  port  of  discharge, 
or  elsewhere,  for  the  recovery  of  damages  for  short  delivery  or 

'  Capehartr.  Seaboard,  etc.,  R.  Co.,  *  Westcott  v.  Fargo,  61  N.  Y.  542. 

77  N.  C.  355.  *  U.  S.  Ex.  Co.  v.  Harris,  51  Indi- 

2  Place  V.  Union  Ex.  Co.,  2  Hilt,  ana,    127.     See   Adams   Ex.    Co.    v. 

19.  Regan,  29  Ind.  21 ;  Southern  Ex.  Co. 

*  Porter  v.  Southern  Ex.  Co.,  4  S.  v.  Caferton,  44  Ala.  101. 
C.  135. 

288 


CHAP.  XXVIII.]      STIPULATIONS   RELATING   TO   DELIVERY.  [§  395. 

non-delivery,  or  for  injury  to  the  cargo.^  The  stipulation  makes 
it  obligatory  on  the  consignee  or  those  claiming  under  him,  to 
prefer  his  claim,  or,  in  other  words,  to  make  a  demand  at  the 
port,  indicated  in  the  clause,  for  payment  before  he  can  maintain 
his  action  for  damages.^  The  consideration  of  the  legality  and 
effect  of  a  clause,  stipulating  that  the  claim  be  made  before  the 
goods  are  removed,  came  before  the  courts  of  England  for  the 
first  time  in  1876,  in  the  case  of  Moore  v.  Harris,^  which  was 
an  appeal  to  the  Privy  Council  from  a  judgment  of  the  Court 
of  Queen's  Bench  in  Lower  Canada.  The  clause  in  the  bill  of 
lading  concerning  the  meaning  of  which  the  contention  arose, 
was  "  no  damage  that  can  be  insured  against  will  be  paid  for, 
nor  will  any  claim  whatever  be  admitted  unless  made  before  the 
goods  are  removed."  It  was  here  said  that  a  "  shipowner  may 
choose  to  say  I  will  not  be  liable  for  any  damage  to  an  article  of 
this  kind  unless  a  claim  is  made,  so  that  it  may  be  looked  into  and 
checked  by  my  agents  before  the  goods  are  removed  from  their 
control.  And  when  a  condition  to  this  effect  is  found  in  a  bill 
of  lading  expressed  in  language,  which,  in  its  ordinary  and 
natural  sense  includes  all  damage,  whether  latent  or  not,  can 
the  courts  undertake  to  say  it  is  so  unreasonable  that  the  parties 
could  not  have  meant  what  they  said  ?  ]^o  doubt  this  condi- 
tion may  bear  hardly  on  consignees,  but  so  also  may  the  very 
large  exception  to  the  responsibility  of  the  shipowner  inserted 
in  the  body  of  this  bill  of  lading.  Certainly  no  reasons  for 
narrowing  the  scope  of  the  condition  can  be  gathered  from  the 
general  tenor  of  the  instrument,  which  is  manifestly  framed 
throughout,  with  a  view  to  exempt  the  shipowner  (as  far  as 
could  be  foreseen)  from  liability  for  damage.  It  may  be  that 
this  has  been  done  to  an  unreasonable  extent ;  but  the  plaintiff's 
are  merchants  and  men  of  business  and  cannot  be  relieved  from 
an  improvident  contract,  if  it  really  be  improvident." 

§  395.  The  following  condition  in  a  bill  of  lad  ins;  was  held 
to  be  reasonable  and  binding  on  the  holder  of  the  bill :  "  The 
articles  named  in  this  bill  of  lading  shall  be  at  the  risk  of  the 
owner,  shipper,  or  consignee  thereof,  as  soon  as  delivered  from 

'  Mahomed  Israailjee  v.  B.  I.  S.  N.  ^  Ibrahim  Moosum  v.  B.  I.  S.  N. 
Co.,  9  Cal.  W.  Rep.  C.  R.  396.  Co.,  8  ib.  35. 

3  45  L.  J.  P.  C.  55. 
19  289 


I  396.]  BILLS   OF   LADING.  [CHAP.  XXVIII. 

the  tackles  of  the  steamer  at  her  port  of  destination  and  they 
shall  be  received  by  the  consignee  thereof,  package  by  package 
as  so  delivered,  and  if  not  taken  away  the  same  day  by  him 
they  may  at  the  option  of  the  steamer's  agent  be  sent  to  store 
or  permitted  to  lie  where  landed  at  the  expense  and  risk  of  the 
aforesaid  owner,  shipper,  or  consignee."^  Where  property  car- 
ried under  a  bill  of  lading  providing  that  notice  of  loss  should 
be  given  in  writing  within  three  days,  was  lost,  the  Supreme 
Court  of  Missouri  said:  "  We  are  not  prepared  to  say  that  the 
failure  of  the  plaintiff  to  make  the  claim  in  the  manner  desig- 
nated would  on  that  account  alone  deprive  him  of  his  right  of 
action. "2  Where  a  carrier's  receipt  said :  "  Consignees  .... 
are  requested  to  notice  any  errors  ....  within  twenty-four 
hours  or  the  company  will  consider  their  liability  as  ended ;" 
it  was  held  that  "errors"  must  mean  mistakes  such  as  would  be 
obvious  on  external  inspection  or  comparison  with  the  bill  of 
lading.  A  consignor  is  not  estopped  by  such  a  receipt  and  lack 
of  notice  from  suing  the  carriers  for  the  consequences  of  its 
negligence  in  transportation.' 

§  396.  In  a  Canada  case,*  it  was  held  that  the  plaintiff,  not 
having  given  written  notice  of  loss  or  damage  within  twenty- 
four  hours  after  delivery  according  to  the  terms  of  the  bill  of 
lading  under  which  some  of  the  goods  were  shipped,  could  not 
recover  in  respect  to  said  goods.  A  carrier  cannot  limit  his 
legal  liability  by  any  notice,  by  publication  or  entry  on  receipts 
for  goods,  or  on  tickets  sold,  but  may  make  an  express  contract 
with  the  shipper  requiring  a  claim  for  loss  or  damage  to  be 
made  within  a  limited  time.* 

1  The  Santee,  2  Ben.  519.  «  Kyle  v.  B.  &  L.  H.  Ry.  Co.,  16 

2  Oxley  V.  S.  L.,   K.  C.  &  N.  Ry.     U.  C.'c.  P.  76. 

Co.,  65  Mo.  629.  ^  South.  Ex.  Co.  v.  Barnes,  36  Ga. 

^  Sanford  i\  Housatonic  R.  R.  Co.,     532. 
65  Mass.  155. 

290 


CHAP.  XXIX.]        DELIVERY   OF   GOODS    TO    CONSIGNEE. 


[§  397. 


CHAPTER  XXIX. 

THE  BILL  IN  ITS  RELATION  TO  THE  DELIVERY  OF  GOODS 
TO  THE  CONSIGNEE, 


Surrender  of  the  bill  before  the  de- 
livery of  the  goods,  §  397. 

Effect  of  custom  on  the  delivery  of 
the  goods,  §§  398,  399. 

Wharf  delivery  by  a  vessel,  §§  400, 
401,  402,  403,  404,  405,  406. 

"Wrong  delivery  by  a  vessel,  §§  407, 
408,  409. 


Delivefy  by  a  carrier  on  land,  §  410. 
Place  of  delivery,  §  411. 
Time  of  delivery,  §  412. 
AccejJtance  by  the  consignee,  '§413. 
The  person  to  whom  delivery  is  to  be 

made,  §  414. 
Effect  of  marks    on    the   goods  upon 

the  stipulations  in  the  bill,  §  415. 


§  397.  A  CLAUSE  requiring  the  presentation  to  the  carrier  of 
bills  of  lading,  properly  indorsed,  as  the  evidence  on  which 
the  delivery  of  the  goods  is  to  be  made,  is  valid.*  In  the  case 
of  Shepard  t;.  Heineken,^  the  facts  were  that  the  plaintiff  shipped 
twenty  firkins  of  butter.  The  voyage  was  abandoned  (owing  to 
the  unseaworthiness  of  the  defendant's  vessel),  before  slie  sailed 
at  all.  The  defendant  refused  to  give  up  the  butter  to  the  plain- 
tift',  who  did  not  tender  or  offer  to  return  the  bills  of  lading,  or  to 
indemnify  the  defendant  against  them.  The  court  held  that  the 
bills  of  lading  required  the  property  to  be  delivered  to  the  con- 
signees therein  named,  or  to  their  assigns  and,  without  a  sur- 
render of  the  bills  or  the  consent  of  the  consignees,  the  defend- 
ants were  not  bound  to  deliver.  They  had  a  right  to  require 
such  surrender  or  consent,  or  (what  they  did  require)  an  indem- 
nity against  the  bills.  The  shipper  may  subject  delivery  to  the 
consignee  to  any  conditions  he  thinks  proper.  So,  where  flour 
was  delivered  to  a  carrier  to  be  transported  and  delivered  at 
destination  to  the  consignees,  upon  presentation  of  a  duplicate 


'  Bishop  V.  Empire  Trans.  Co.,  33 
N.  Y.  Supr.  Ct.  99 ;  Ferguson  v. 
Donville,  3  P.  &  B.  (New  Brunswick 
Reps.)    5  76.     See    the   legislation   in 


Pennsylvania  and  New  York  on  this 
subject. 

2  2  Sweeny  (N.  Y.),  525. 

291 


§  398.]  BILLS   OF   LADING.  [CHAP.  XXIX. 

bill  of  ladiug  and  the  carrier  delivered  to  said  consignee  with- 
out such  presentation,  he  was  held  liable  for  the  value  of  the 
o-oods.^  In  a  recent  Georgia  case  it  was  held  that  a  railroad 
ao-ent  had  a  right,  for  his  own  security,  to  exact  the  production 
of  the  bill  of  lading  before  delivery,  or  to  have  it  shown  that 
its  non-production  would  leave  no  liability  on  the  part  of  the 
company  to  a  bona  fide  assignee  thereof.^    • 

§  398.  A  bill  of  lading  is  supposed  to  be  made  with  reference 
to  the  usage,  as  to  delivery,  at  the  port  of  delivery,  but  if  there 
be  no  usage,  the  delivery 'should  be  according  to  the  general  cus- 
tom. Where  the  local  usage  differs  from  the  general  custom,  it 
must  be  made  very  plain.^  Where  it  was  in  question  whether 
a  delivery  on  a  wharf  boat  at  Memphis  was  by  virtue  of  a  gen- 
eral custom,  a  good  delivery  to  consignee,  it  was  said  that  a  bill 
of  lading  is  a  special  contract,  in  general  not  to  be  varied  by 
parol  evidence,  but  that  where  some  of  its  terms  by  the  usages 
of  trade  have  acquired  a  peculiar  signification,  a  legal  presump- 
tion arises  that  the  persons  engaged  in  such  trade  used  such 
terms  according  to  that  acceptation.  Such  custom  is,  however, 
not  to  be  established  without  clear  and  satisfactory  proof  of  its 
actual  existence  and  of  the  general  acquiescence  therein  by  the 
public*  The  proper  mode  of  delivering  goods  transported  by 
water  is  determined  by  the  custom  of  the  port  of  delivery  and 
the  course  of  trade  between  the  parties.  Where  the  bill  of 
lading  stipulates  for  delivery  to  the  consignee,  to  justify  a 
substituted  delivery,  the  carrier  must  show  that  such  delivery 
is  according  to  the  custom  of  the  port  of  delivery.^  A  usage 
of  consignees  at  a  port  to  receive  shipments,  during  a  quaran- 
tine season,  at  the  quarantine  grounds  as  being  a  compliance 
with  the  engagement  of  the  bill  of  lading  to  deliver  at  such 

'  ]\IcEwen  v.  J.,  M.  &  I,  R.  R.  Co.,  *  Wayne  i'.  Steamboat  Gen.  Pike, 

33  Ind.  369;  Bishop  v.  Empire  Trans.  16  Ohio,  421  ;  The  Tybee,  1  Woods, 

Co.,  33  N.  Y.   Supr,  Ct.  99;  Jeffer-  358;     Turnbull    v.    Citizens   Bank,  4 

sonville,  etc,  Ry.   Co.    v.    Irvin,    46  Woods,    192;    Bradstreet   v.    Heron, 

Ind.  180.  Abbott's  Adm.  209  ;    Bank  of  Com- 

2  Bass  V.  Glover,  63  Ga.  745.  See  merce  v.  Bissell,  72  N.  Y.  615;  Pin- 
also  Dwyer  v.  Gulf,  etc.,  Ry.  Co.,  69  dell  v.  St.  Louis,  etc.,  R.  Co.,  34  Mo. 
Texas,  707.  App.  6  75. 

'  Cope  V.  Cordova,  I  Rawle  (Pa.),  ^  Richmond    v.    Union    Steamboat 

202.  Co.,  87  N.  Y.  240. 

292 


CHAP.  XXIX.]        DELIVERY   OF   GOODS    TO   CONSIGNEE.  [§  400. 

port,  is  valid  and  the  bill  of  lading  should  be  construed  with 
reference  to  it.* 

§  399.  Custom,  however,  cannot  vary  the  terms  of  an  un- 
ambiguous contract.     In  TurnbuU  v.  Citizens  Bank,^  a  bill  of 
lading  for  117  tons  of  pig  iron  in  the  usual  form  contained  the 
following  clause :    "  The  said   master   hereby  acknowledging 
having  received  the  full  weight  of  iron  herein  specified,  the 
same  having  been  weighed  alongside  at  shipment  and  holding 
himself  and  the  said  vessel  bound  to  deliver  the  same  weight 
of   iron,  provided  it  be  weighed  alongside  at  discharging." 
The  iron  could  not  be  unloaded  and  piled  on  the  wharf  on 
account  of  wharf  regulations  prohibiting  it,  so  that  the  ship 
was  obliged  to  have  it  trucked  across  the  wharf  to  terra-firma, 
where  it  was  weighed  and  found  to  be  some  tons  short.    On  a  libel 
■for  a  balance  of  freight  and  charges,  Mr.  Justice  Pardee  said : 
"  The  consignees  also  urge  a  custom  of  the  port  as  sworn  to  in 
these  terms :  (The  terra,  taken  from  alongside,  in  its  general  accep- 
tation with  merchants  here,  does  not  mean  that  the  merchant  is 
to  take  it  from  within  a  foot  or  two  of  the  ship,  but  that  the 
ship  is  to  deliver  on  the  earthwork,  as  is  customary  at  this  port.) 
Conceding  such  a  custom— custom  cannot  vary  the  terms  of  an 
unambiguous  contract ;  to  allow  such  a  custom  to  come  in  where 
the  parties  have  specified  that  the  cargo  '  is  to  be  taken  from 
alongside,'  would  be  to  render  nugatory  such  a  clause.     That 
undoubtedly  and  plainly  means  that  they  were  to  take  it  from 
where  the  ordinary  appliances  of  the  ship  would  leave  it  in 
discharging,  at  the  end  of  the  ship's  tackle." 

§  400.  An  actual  discharge  of  the  goods  at  the  warehouse 
of  the  consignee  is  not  required  to  constitute  delivery.  It  is 
enough  that  the  master  discharge  the  goods  upon  the  wharf, 
o-ivino-  due  and  reasonable  notice  to  the  consignee  of  the  fact.^  A 

1  Bradstreet  v.  Heron,  Abbott's  Texas,  107  ;  Fay  d.  Alliance  Ins.  Co., 
Adm.  209.  16  Gray,  455;    Germania  Ins.  Co.  v. 

2  4  Woods,  192.  La  Crosse,  etc.,  Co.,  3  Bissell,   501  ; 

3  The  Eddy,  5  Wallace,  481 ;  Cope  Gleadell  v.  Thomson,  56  New  York, 
V.  Cordova,  1  Rawle  (Pa.),  211;  194;  Kennedy  «.  Dodge,  1  Benedict, 
Chickering  v.  Fowler,  21  Mass.  (4  311;  The  Ship  Ben  Adams,  2  ib. 
Pick.)  371  ;  Gauche  v.  Storer,  14  La.  445;  The  Steamship  Ville  De  Paris, 
Ann.  Rep.  411  ;  Morgan  v.  Dibble,  29  3  ib.  276  ;  The  Bark,  Fangier,  3  Ware, 

293 


§  401.]  BILLS   OF   LADING.  [CHAP.  XXIX. 

delivery  on  the  wharf,  however,  is  not  sufficient  if  the  consignee 
has  no  opportunity  to  inspect  the  goods.  In  Dibble  v.  Morgan,^ 
the  bill  of  lading  provided  that  "  the  landing  of  the  goods  upon 
the  wharf  should  be  considered  a  delivery  to  the  consignee." 
The  vessel  arrived  at  her  destination  and  by  noon  had  landed 
all  her  cargo  upon  the  wharf,  but  the  weather  being  bad  and 
growing  stormy,  the  goods  of  the  various  consignees  were  piled 
up  in  one  bulk  and  covered  with  tarpaulins.  The  officer  of 
the  ship  refused  to  let  them  be  removed,  saying  that  they  were 
not  ready  to  deliver.  During  the  night  following,  the  wharf 
was  damaged  by  the  storm  and  the  goods  were  lost.  The  court 
held  that,  as  no  opportunity  to  inspect  the  goods  was  given  to 
the  consignee,  there  was  no  proper  delivery  and  that  the  carrier 
was  liable  for  the  loss. 

§  401.  In  the  case  of  The  Eddy^  it  appeared  that  the  master 
of  a  schooner  received  on  his  vessel  at  New  Orleans  some  hogs- 
heads of  sugar  and  syrup  to  be  delivered  at  Charleston,  South 
Carolina.  The  bill  of  lading  provided  for  the  payment  of  the 
freight  by  the  consignees.  The  vessel  arrived  safely  and  notice 
was  given  to  the  consignees  that  the  goods  would  be  delivered 
to  them  on  the  payment  of  the  freight.  The  consignees  declined 
to  pay  the  freight,  unless  the  sugars  and  syrups  were  all  delivered 
in  their  store  and  after  inspection  were  found  to  be  in  good 
order  and  uninjured.  A  portion  of  the  goods  was  delivered, 
but  on  the  refusal  to  pay  the  proportion  of  freight  due  on  the 
goods  so  delivered,  the  balance  was  put  in  store  by  the  master 
and  subsequently  sold  for  storage.  Mr.  Justice  Clifford,  in 
delivering  the  opinion  of  the  court,  said :    "  Delivery  on  the 

110;  The  Santee,  7  Blatchf.  186  ;  The  Ry.  Co.,  3  Mo.  Ap.  359  ;   Medley  v. 

Boston,  1  Lowell,  464;    Cain  v.  Gar-  Hughes,  11  La.  Ann.  Rep.  211  ;  Scott 

field,   ib.  483  ;  The  Phila.  &  Reading  v.  Hescroff",  5  L.  Can.  Rep.  274;  Tar- 

R.  R.  Co.  V.  Northam,  2  Benedict,  1  ;  bell  v.  Royal  Exch.,  etc.,  Co.,  110  N. 

Close  V.  Beatty,  28  U.  C.  C.  P.  470;  Y.  170;   Arthur  v.  St.   Paul,  etc.,  R. 

McMasterr.  Walker,  8  L.C.  Rep.  171  ;  Co.,  38  Minn.  95  ;  Independence  Mills 

Bradley  y.  Dunipace,  7  H.  &  N.  200;  Co.   v.    Cedar   Rapids,   etc.,    R.    Co., 

Scholes  u.  Ackerland,  15  Illinois,  474  ;  72  Iowa,  535;   Feige  v.  Mich.   Cent. 

The  City  of  Austin,  2  Fed.  Rep.  412;  R-  Co.,  62  Mich.  1. 

1265  Vitrified  Pipes,  14  Blatchf.  274;  ^1  Woods,  407. 

Wheeler    v.    St.    L.    &    Southeastern  ^  5  Wallace,  481. 

294 


CHAP.  XXIX.]        DELIVERY   OF  GOODS   TO   CONSIGNEE.  [§  402. 

wharf  in  the  case  of  goods  transported  by  ships  is  sufficient 
under  our  law,  if  due  notice  be  given  to  the  consignees  and  the 
diflerent  consignments  be  properly  separated  so  as  to  be  open 
to  inspection  and  conveniently  accessible  to  their  respective 
owners.  Where  the  contract  is  to  carry  by  water  from  port  to 
port,  an  actual  delivery  of  the  goods  into  the  possession  of  thp 
owner  or  consignee  or  at  his  warehouse  is  not  required  in  order 
to  discharge  the  carrier  from  his  liability.  He  may  deliver 
them  on  the  wharf;  but  to  constitute  a  valid  delivery  there  the 
master  should  give  due  and  reasonable  notice  to  the  consignee, 
so  as  to  afford  him  a  fair  opportunity  to  remove  the  goods  or 
put  them  under  proper  care  and  custody.  When  the  goods, 
after  being  so  discharged  and  the  different  consignments  prop- 
erly separated,  are  not  accepted  by  the  consignee  of  owner  of 
the  cargo,  the  carrier  should  not  leave  them  exposed  on  the 
wharf,  but  should  store  them  in  a  place  of  safety,  notifying  the 
consignee  or  owner  that  they  are  so  stored,  subject  to  the  lien 
of  the  ship  for  the  freight  and  charges,  and  when  he  has  done 
so  he  is  no  longer  liable  on  his  contract  of  afireightment." 

§  402.  A  delivery  on  the  wharf  is  not  sufficient  if  the  goods 
are  discharged  in  such  an  unskilful  and  negligent  manner  that 
the  dock  on  which  they  are  placed  breaks  down  and  they  are 
precipitated  into  the  water  and  lost.^  ISTor  will  the  carrier  be 
relieved  by  a  loss  occasioned  by  the  misconduct  of  his  own 
servants  after  the  goods  have  been  placed  upon  the  wharf.  In 
Gleadell  v.  Thomson^  the  bill  of  lading  exempted  the  carrier 
from  liability  for  "any  act,  negligence,  or  default  whatsoever, 
of  the  pilot,  master,  or  mariners."  It  also  provided  that  the 
goods  should  be  taken  from  alongside  by  the  consignees  "im- 
mediately the  vessel  is  ready  to  discharge,  or  otherwise  the 
privilege  is  reserved  to  the  vessel  to  land  them  on  the  pier,  at 
the  expense  of  the  consignee  and  at  his  risk  of  fire,  loss,  or  in- 
jury." The  goods  were  placed  on  the  plaintiff's  pier  and  the  de- 
fendant's agents  were  placing  tarpaulins  upon  them  to  protect 
them  from  a  storm  when  one  of  the  tarpaulins  was  forcibly  taken 
away  from  them  by  the  plaintiff's  servants  and  used  to  cover 

^  Kennedy   v.   Dodge,    1   Benedict,         "  56  N.  Y.  194. 
311. 

295 


§  403.]  BILLS   OF   LADING.  [CHAP.  XXIX. 

the  hatchway  of  the  ship.  The  court  held  that  "  any  act,  neg- 
lio-ence,  or  default  whatsoever  of  the  pilot,  master,  or  mariners" 
related  only  to  the  time  while  the  goods  were  upon  the  ship  in 
the  course  of  the  voyage,  but  that  the  clause  did  not  relieve 
the  plaintiff  from  liability  for  a  loss  resulting  from  the  miscon- 
duct of  his  servants  after  the  goods  were  on  the  wharf.  If  a 
bill  of  lading  provides  that  the  goods  "  shall  be  at  the  risk  of 
the  owner,  shipper,  or  consignee  thereof  as  soon  as  delivered 
from  the  tackles  of  the  steamer  at  her  port  of  destination,"  the 
carrier  is  not  bound  to  watch  the  property  after  it  has  passed 
beyond  the  ship's  tackles  to  see  that  it  is  kept  safe.^ 

§  403.  A  delivery  at  the  wharf  of  a  third  party  is  not  a  de- 
livery according  to  a  bill  of  lading  which  designates  another 
place  of  delivery.^  If  no  wharf  is  designated  and  there  are  two 
or  more  wharves  in  the  port  equally  convenient  to  the  carrier, 
he  is  bound  to  deliver  at  the  one  most  convenient  to  the  con- 
signee or  his  assigns.  In  the  case  of  "  The  Boston,"^  the  libel- 
lauts  shipped  a  cargo  of  coal  on  board  the  schooner  "'  Boston," 
and  received  a  bill  of  lading  requiring  delivery  to  "B.  &  H.,  or 
their  assigns,"  and  further  providing  that  in  twenty-four  hours 
after  arrival  at  the  port  and  notice  thereof  to  the  consignee,  the 
vessel  should  be  discharged  at  a  certain  rate.  The  consignees 
refused  to  receive  the  coal  and  indorsed  the  bill  of  lading  to  the 
shippers,  who  thereupon  ordered  the  master  to  discharge  at  a  cer- 
tain other  wharf,  but  the  master  having  come  up  to  the  wharf 
next  to  that  of  the  original  consignees,  refused  to  go  elsewhere. 

The  court  said  :  "  There  is  no  evidence  of  what  is  usual  or 
suitable  in  respect  to  cargoes  of  coal ;  but,  considering  the 
heavy  nature  of  the  cargo,  which  makes  its  transportation  on 
land  very  costly,  I  am  led  to  doubt  whether  a  usage  to  land 
such  a  cargo  at  a  distance  from  the  owner's  wharf  could  be 
considered  reasonable.  In  the  absence  of  evidence  of  usage,  I 
lay  down  the  rule  of  law,  as  I  did  in  another  case,  that  when 
there  are  two  or  more  wharves  in  the  port  equally  convenient  to 
the  carrier,  he  is  bound  to  deliver  at  that  most  convenient  to 

'  The  Santee,  7  Blatchf.  186.     See  ^  Humphreys  v.  Reed,  6  Wharton 

also   Fay   v.    Alliance    Ins.    Co.,    16  (Pa.),  434. 

Gray,  455.                              »    .  ^  1  Lowell,  464. 
296 


CHAP.  XXIX.]        DELIVERY   OF   GOODS   TO   CONSIGNEE.  [§  405. 

the  shipper;  at  least  if  he  be  duly  and  reasonably  notified  of 
such  preference.  And  where  one  shipper  or  consignee  owns  the 
whole  cargo,  he  has,  in  my  opinion,  the  same  right  that  a  char- 
terer would  have  to  say  where  the  vessel  shall  discharge,  it 
being,  of  course,  a  suitable  place  and  within  the  limits  of  the 
port." 

§  404.  "When  a  delivery  cannot  be  made  at  destination,  such 
prudent  care  of  the  goods  and  their  diligent  and  safe  delivery, 
with  notice  to  the  consignee  at  such  point  as  best  comports 
with  the  interests  of  the  owner,  according  to  the  circumstances, 
will  excuse  the  carrier,  but  the  carrier  must  prove  such  matter 
of  excuse.^ 

Where  goods  were,  by  the  bill  of  lading,  to  be  landed  at 
-"  Chelsea,  below  bridges,"  it  was  held  they  must  be  landed 
there  from  the  ship  if  it  could  be  done  with  safety  to  her.^ 

In  a  suit  for  a  statutory  penalty  in  Alabama  for  the  landing 
of  goods  by  a  carrier  less  than  ten  feet  above  the  water  of  a 
river  where  they  were  submerged  and  greatly  injured,  where  it 
appeared  that  the  warehouseman  to  whom  they  were  consigned 
told  the  carriers  they  might  put  them  there  and  said  he  was 
satisfied,  it  was  held  that  the  consignee  is  the  agent  of  the 
owner  to  receive  goods  at  the  port  of  delivery  and  has  authority 
to  receive  them  at  any  particular  point  of  that  port.  Where 
the  bill  of  lading  stipulates  for  delivery  to  "  warehouse  or 
assigns,"  the  warehouseman  at  the  landing  is  the  consignee.^- 

§  405.  Where,  after  inquiry,  the  consignees  under  a  bill  of 
lading  cannot  be  found,  the  duty  of  the  carrier  is  to  retain  the 
goods  until  they  are  claimed,  or  to  store  them  prudently  for  the 
owner.  Close  v.  Beatty  *  was  an  action  brought  for  not  delivering 
goods  shipped  on  board  the  defendant's  vessel,  to  be  delivered  to 
the  plaintiffs  or  their  assigns.  The  defendants  pleaded  that  they 
carried  the  goods  to  their  destination  and,  there  being  no  per- 
son on  plaintiff's  behalf  to  receive  them,  or  to  whom  notice  of 
their  arrival  could  be  given  and  no  means  of  notifying  the 
plaintiffs,  who  lived  at  a  great  distance,  the  defendants  having 
no  warehouse  of  their  own  and  there  not  being  any  other  ware- 

^  Green  and  Barren  River  Nav,  Co.         '  Winston  v.  Cox,  38  Ala.  268. 
V.  Marshall,  48  Ind.  596.  "  28  U.  C.  C.  P.  470. 

2  Shaw  V.  Gardner,  12  Gray,  488. 

297 


e  406.]  BILLS   OF   LADING.  [CHAP.  XXIX. 

house  in  which  they  could  store  the  goods,  after  waiting  a  rea- 
sonable time,  landed  the  goods  at  the  only  wharf  there,  where  it 
was  usual  and  customary  to  land  goods,  and  placed  them  in 
the  care  of  the  person  in  charge  of  the  wharf,  so  far  as  he  would 
consent  to  take  charge  of  them.  The  plaintiffs  demurred  and 
it  was  held  that  the  plea  was  no  defence,  the  court  saying: 
"We  cannot  agree  that  this  was  a  fulfilment  of  their  duty." 

§  406.  What  constitutes  a  delivery  on  a  wharf  was  considered 
in  the  case  of  The  Steamship  A^ille  de  Paris.^  A  package  of 
o-oods,  being  one  of  three  specified  in  a  bill  of  lading,  was 
delivered  over  the  ship's  side  by  its  employes,  placed  from 
its  tackles  upon  a  hand-truck  belonging  to  the  ship  and  was 
then  wheeled  by  an  employe  of  the  ship  to  the  door  of  a 
movable  house  which  stood  at  a  point  between  the  ship's  gang- 
way and  the  inner  end  of  the  wharf.  The  employe  stopped 
with  the  truck  having  the  case  upon  it,  in  front  of  the  customs 
inspectors,  who  were  at  the  door  of  the  house  and  submitted 
the  case  to  their  view.  One  of  them  placed  upon  it  the  letters 
"  P.  S.,"  with  chalk  and  it  was  then  wheeled  away  on  the  same 
truck,  by  the  same  employe  of  the  ship,  further  towards  the 
inner  end  of  the  wharf  and  further  from  the  ship  than  the 
house.  So  far  as  it  appears  it  was  never  seen  or  heard  of  after- 
wards. Its  deposit  upon  the  wharf  from  the  truck  was  not 
shown.  The  letters  "P.  S."  indicated  that  it  was  to  be  taken 
to  a  public  store  and  it  was  in  course  for  the  truckman  to  de- 
posit it  at  a  particular  place  on  the  wharf  which  the  inspectors 
had  previously  designated  as  a  place  for  the  aggregation  of  such 
packages  as  were  to  be  taken  to  a  public  store.  It  was  not  found 
at  that  place.  Search  was  made  for  it  about  half  an  hour  after- 
wards, but  it  could  not  be  found.  The  other  two  cases,  which 
came  out  of  the  ship  at  other  times,  were  wheeled  sepa- 
rately on  other  trucks  to  the  inspector's  house  and  were  there 
marked  by  them  each  with  a  cross,  to'  denote  that  they  were  to 
be  delivered  to  their  consignees,  were  afterwards  found  at  their 
proper  place  of  deposit  on  the  wharf  (which  was  a  different 
place  from  that  where  the  case  in  question  ought  to  have  been 
deposited),  and  were  received  by  the  libellants.     The  wharf  was 

1  3  Benedict,  276. 

298 


CHAP.  XXIX.]        DELIVERY   OF   GOODS   TO    CONSIGNEE.  [§  407. 

exclusively  occupied  by  the  claimants  and  was  inclosed  on  the 
inner  end  of  it  by  a  fence,  access  through  which  was  had  by 
gates.  The  court  held  that  these  facts  did  not  constitute  any 
delivery  of  the  case  on  the  wharf,  or  any  delivery  of  it  to  the 
custom  house  authorities,  so  as  to  exonerate  the  vessel  from  her 
liability  under  the  bill  of  lading. 

§  407.  McMaster  v.  Walker^  was  a  rather  curious  case,  in- 
volving the  general  subject  of  delivery  by  a  carrier  to  a  con- 
signee. The  plaintiiFs  sued  for  the  value  of  two  chains,  which, 
together  with  a  third  chain,  the  defendant,  as  master  of  a  steam- 
ship, had  received  in  good  order  and  condition  as  per  bill  of 
lading,  and  had  undertaken  to  carry  and  deliver,  but  which 
he  neglected  and  failed  to  do.  While  the  said  three  chains 
were  still  in  his  charge  and  custody,  two  of  them  were,  by 
the  carelessness  and  negligence  of  defendant,  lost  overboard 
and  sunk.  The  defendant  pleaded  full  delivery.  The  evidence 
established  that  shortly  after  the  arrival  of  the  steamship  a 
bateau  was  sent  alongside  of  her,  at  the  instance  of  the  plain- 
tiff, to  receive  the  three  chains  in  question ;  that  for  the  pur- 
pose of  delivery  the  people  on  board  of  the  steamship  attached 
the  three  chains  together  by  tying  the  ends  with  rope ;  that  by 
this  means  the  chains  were  hoisted  out  of  the  hold,  a  number 
of  feet  at  a  time,  and  slackened  oft'  into  the  bateau  alongside, 
and  in  this  manner  delivery  was  proceeded  with  until  two  of 
the  chains  and  part  of  the  third  had  been  delivered  and  put  on 
board  of  the  bateau,  when  a  portion  of  this  chain  got  down 
between  the  steamship  and  the  bateau,  and  by  its  weight  began 
dragging  away  the  other  portions  on  board  of  both  the  steam- 
ship and  the  bateau,  and  all  upon  the  bateau  was  carried  out 
and  sunk  in  the  river,  the  rope  gave  way  and  the  two  chains 
remained  at  the  bottom  of  the  river.  The  owner  of  the  bateau 
said  that  the  loss  was  occasioned  by  the  too  great  rapidity  with 
which  the  people  of  the  steamship  delivered  it;  that  they  could 
not  receive  it  so  fast.  It  was  held,  "  In  this  case  the  court  here 
confirms  the  judgment  of  the  court  below.  The  chains  being 
attached  together  by  the  people  on  board  the  steamship  were 
one  whole  and  until  a  delivery  of  the  whole  was  made,  there 

•  8  Lower  Can.  Rep.  71. 

299 


I  409.]  BILLS   OF   LADING.  [CHAP.  XXIX. 

was  no  delivery  at  all  and  therefore  they,  the  people  of  the 
steamship,  ought  to  have  observed  greater  caution.  It  is 
moreover  proved,  that  the  ropes  with  which  they  were  attached 
were  not  strong  enough  and  therefore  the  people  on  board  of 
the  steamship  ought  to  have  taken  more  care  and  greater  pre- 
caution in  slackening  the  chain  into  the  bateau." 

§  408.  Where  packages,  identical  in  appearance,  but  contain- 
ing goods  of  different  quality  or  weight,  are  so  mingled  in  the 
vessel  that  a  wrong  delivery  is  made  to  the  respective  con- 
signees, the  carrier  is  liable  for  any  loss  resulting  from  the  mis- 
take. In. the  case  of  the  ship  "  Ben  Adam,'"'  flour  was  shipped 
on  board  of  a  vessel  by  two  different  shippers,  the  flour  being 
all  similarly  branded,  but  the  two  diff'erent  lots  having  also 
other  brands  by  which  they  were  easily  distinguishable.  In 
the  bills  of  lading  given  to  the  respective  shippers  the  flour 
was  entered  the  same.  On  the  arrival  of  the  vessel  only  a  part 
of  one  consignment  was  delivered  to  the  consignee,  it  being  of 
a  better  quality  than  that  in  the  other  consignment,  and  the 
remainder  was  taken  away  by  the  consignee  of  the  other  lot, 
who  was  allowed  to  take  it  from  the  other  dock  by  the  delivery 
clerk  of  the  vessel  having  charge  of  the  delivery  of  the  cargo. 
The  court  held  that  the  consignee  was  entitled  to  a  delivery 
of  the  identical  barrels  shipped  and  was  entitled  to  a  decree 
ai^ainst  the  ship  for  the  damages  occasioned  by  the  non-delivery 
to  him  of  the  whole  number  of  barrels  shipped  to  him,  less  the 
freight  and  primage. 

§  409.  Bradley  v.  Dunipace^  was  a  case  in  which  a  flour 
company  shipped  on  a  vessel  of  which  the  defendant  was  master, 
1676  bags  of  rye  meal,  some  of  which  weighed  12  and  some 
8  stone  each.  They  were  shipped  all  mixed  together  and  the 
master  knew  nothing  of  their  relative  capacity.  He  signed  two 
bills  of  lading,  one  for  1209  bags  and  one  for  467  bags  deliver- 
able to  order.  The  latter  was  for  467  bags  rye  meal,  gross  35 
tons  9  cwt.  and  at  the  foot  of  it  was  "  contents  unknown  and  not 
responsible  for  weight."  The  bags  were  all  marked  alike  and 
no  means  were  taken  to  identify  by  marks  in  the  bills  of  lading 
any  particular  bags.     There  was  nothing  on  the  face  of  the 

^  2  Benedict,  445.  "  7  H.  &  N.  200  ;  32  L.  J.  Exch.  22. 

300 


CHAP.  XXIX.]        DELIVERY   OF   GOODS   TO   CONSIGNEE.  [§  410. 

bills  of  lading  from  which  the  master  could  see  that  they  were 
intended  for  difterent  consignees.  The  defendant  by  mistake  de- 
livered to  the  plaintiff,  the  consignee  of  the  467  bags,  a  number 
of  bags  of  only  8  stone.  The  right  number  was  delivered,  but  the 
total  weight  was  short  several  tons.  It  was  held  in  the  Ex- 
chequer Chamber,  on  appeal  from  the  Exchequer,  that  the 
master  was  responsible  for  the  deficient  delivery.  Where,  by 
mistake  through  the  error  of  the  clerk  of  a  carrier,  two  con- 
signments were  put  together  in  one  bill  and  both  lots  of  stock 
were  delivered  to  one  shipper,  whereby  the  other  shipper  lost 
his  property,  the  carrier  company  was -held  liable  for  the  value 
of  the  stock  and  interest.^  The  owner  of  a  vessel  is  liable  for 
the  expense  of  the  carriage  of  goods  from  the  place  where  the 
master  lands  them  to  the  place  of  lauding  called  for  by  the  bill 
of  lading  of  the  goods.* 

§  410.  Where,  by  the  contract  with  a  railroad,  goods  are  to 
be  unloaded  by  the  consignee  and  this  has  been  done,  no 
further  act  remaining  to  be  done  by  the  carrier,  nothing  is 
wanting  to  constitute  a  delivery .^  A  stipulation  in  a  shipping 
bill  that  delivery  of  goods  will  be  considered  complete  and  the 
responsibilities  of  the  carrier  will  be  considered  to  terminate 
when  placed  in  the  carrier's  shed  or  warehouse,  relieves  the 
carrier  only  from  liability  as  such  and  not  as  warehousemen, 
where  the  goods  have  been  stored  and  no  notice  of  arrival 
given,  although  it  was  the  custom  of  defendants  to  deliver 
goods  and  charge  for  cartage.''  Where  an  express  company's 
receipt  for  goods  said  "  to  be  forwarded  to  our  agency  nearest 
or  most  convenient  to  destination  only,"  it  was  held  that  the 
word  "  agency"  included  not  only  the  defendants'  place  of  busi- 
ness, but  also  their  servants  and  teams  employed  to  deliver 
packages  and  that  they  were  liable  for  the  carriage  and  delivery 
of  packages  so  far  as  their  agency  extended.* 

1  C.  &  N.  W.  R.  R.  Co.  V.  Ames,  51  Iowa,  338 ;  Dennis  v.  C.  &  C.  B.  R. 
40  111.  249.  R.  Co.  ib. 

2  The  Port  Adelaide,  38  Fed.  Rep.  *  McCrosson  v.  Gr.  Tr.  Ry.  Co.,  23 
753;  Beard  v.  Steele,  34  Upper  Can-  U.  C.  C.  P.  107. 

ada   Q.  B.  43  ;    Richmond  v.  Union        ^  Sullivan  v.  Thompson,   99   Mass. 
Steamboat  Co.,  87  N.  Y.  240.  259. 


8  Reinemanu.  C.  C.  &  B.  R.  R.  Co., 


301 


§  412.]  BILLS   OF   LADING.  [CHAP,  XXIX. 

§  411.  Delivery  to  the  consignee  and  acceptance  by  him  of 
goods  at  any  other  place  than  the  one  specified,  will  discharge 
a  carrier  from  his  contract  to  deliver  at  that  place,^  but  where 
a  disaster  happens  to  a  cargo  in  consequence  of  a  peril  or  acci- 
dent not  within  the  exceptions  of  the  bill  of  lading,  a  mere 
acceptance  of  the  goods  by  the  owner  at  an  intermediate  port  or 
at  the  place  of  disaster,  will  not  preclude  him  from  his  remedy. 
It  must  ajDpear  that  the  acceptance  was  intended  as  a  discharge 
of  the  vessel  and  her  owners  from  any  furthel'  responsibility.'' 
"Where  a  voyage  is  stopped  by  an  embargo,  an  authorized 
receipt  of  the  cargo  at  .the  point  of  departure  by  an  agent  of 
the  owners  and  the  sale  of  it  will,  of  themselves,  defeat  an 
action  on  the  bill  of  lading  against  the  carrier.^ 

§  412.  Where  a  bill  of  lading  is  silent  as  to  the  time  for  unload- 
ing, a  reasonable  time  is  allowed.*  The  consignee  is  entitled 
to  a  reasonable  opportunity  to  examine  his  goods  to  see  if  the 
obligations  of  the  bill  of  lading  have  been  fulfilled  by  the  car- 
rier. Until  this  is  given,  the  carrier  is  not  entitled  to  demand 
his  freight.  For  instance,  where  a  consignment  consists  of 
cheese,  the  master  should  place  it  in  the  levee  separate  from 
the  rest  of  the  cargo,  so  as  to  give  the  consignees  an  opportu- 
nity to  inspect  it.*  Where  the  bill  of  lading  gives  three  days 
to  unload  the  cargo  and  provides  for  a  certain  rate  of  demur- 
rage thereafter,  the  consignee  has  a  right  to  detain  the  vessel  a 
reasonable  time  after  the  three  days  and  the  right  can  be 
terminated  only  by  notice  given  by  the  carrier,  that  if  the 
goods  should  not  be  received  within  the  reasonable  time 
therein  specified,  they  would  be  stored  elsewhere.®  Property 
is  to  be  considered  as  "  awaiting  delivery"  as  soon  as  it  is  in 

'  1   Penna.   Co.  v.  Holderman,   69  11  Wise.  407  ;  Brittan  r.  Barnaby,  21 

Ind.  18;   AA^right  v.  Cluxton,  31   U.  Howard,  527;    L.    L.  G.  R.   R.  Co. 

C.  Q.  B   246;   Arbuckle  v.  Thempen,  y.    Maris,    16    Kans.    333;    Kemp   v. 

1    AVright    (Pa.),    170;    Bulkley    v.  McDougall,    23    U.    C.    Q.    B.    380; 

Naumkeag    Steam    Cotton    Co.,     24  Howard  v.   Shepherd,    9  C.  B.  296; 

Howard,  386.  Dibble  v.  Morgan,  1  Woods,  407. 

^  Home  Ins.  Co.  v.  W.  T.  Co.,  51  *  Lanata  v.  Ship   Henry  Grinnell, 

N.  Y.  93.  13  La.  Ann.  Rep.  24. 

•  Brown  v.  Delano,  12  Mass.  370.  ^  Western  Trans.  Co.  v.  Barber,  56 

*  Henley  v.  The  Brooklyn  Ice  Com-  N.  Y.  544. 
pany,  14  Blatchf.  522  ;  Nudd  v.  Wells, 

302 


CHAP.  XXIX.]        DELIVERY    OF   GOODS    TO    CONSIGNEE.  [§  414. 

condition  to  be  delivered  to  the  consignee  when  demanded 
and  not  merely  from  the  time  when  the  right  to  charge  for 
storage  accrues.* 

§  413.  A  consignee  by  accepting  a  cargo  with  knowledge  of 
the  terms  on  which  it  was  transported,  makes  himself  by  adop- 
tion a  party  to  the  contract  between  the  shipowner  and  the 
consignor^  but  the  consignee  and  his  assigns,  not  being  parties 
to  the  contract  in  the  bill  of  lading,  are  not  bound  to  accept  the 
cargo  at  any  particular  time  and  incur  no  responsibility  by  a 
refusal  or  delay  in  accepting  it.^ 

§  414.  The  stipulation  as  to  the  "  loss"  of  goods  does  not 
apply  to  their  delivery  to  a  wrong  person.'*  Where  a  carrier 
makes  an  erroneous  entry  on  a  bill  of  lading  whereby  the 
goods  are  delivered  to  the  wrong  person,  he  is  liable  for  the 
loss.*^  In  Libby  v.  Ingalls,^  the  carriers,  who  had  been  instructed 
to  deliver  to  the  order  of  the  shippers,  delivered  the  goods  to 
the  consignees  without  their  producing  any  bill  of  lading,  re- 
ceipt or  order  of  the  shippers.  The  court  held  that  until  the 
carriers  could  deliver  to  the  shippers  or  some  one  showing 
authority  from  them,  it  was  their  duty  to  retain  and  take  care 
of  the  goods  and  if  they  delivered  to  one  not  entitled  to  them, 
they  became  liable  to  the  owners  for  their  value.  In  Southern 
Express  Co.  v.  Dickson,^  an  express  company  well  knowing  that 

1  M.  C.  K  R.  Co.  V.  Hale,  6  Mich.  Bissell,  72  N.  Y.  615;  Weyand  v. 
243;  Putnam  u.  Furnam,  71  N.  Y.  Atchison,  etc.,  R.  R.  Co.,  75  Iowa, 
590.  573  ;  The  Stettin,  L.  R.  14  P.  D.  142  ; 

2  Morse  v.  Pesant,  2  Keyes  (N,  Y.),  Neekey  v.  St.  Louis,  etc.,  R.  R.  Co., 
16;  Putnam  v.  Furnam,  71  N.  Y.  35  Mo.  App.  79  ;  Nebenzahl  v.  Fargo, 
590  ;  Rodgers  v.  Phillips,  40  ib.  519.  22  N.  Y.  St.  Repr.  231  ;   Gibbons  v. 

8  Gage  V.  Morse,  94  Mass.  410.  Farwell,  63  Mich.  344;   No.   Pa.   R. 

*  B.  &  O.  R.  R.  Co.  V.  McWhinney,  R.  Co.  v.  Bank,  123  U.  S.  727  ;  Wells 

36  Ind.  436  ;   Brunswick  v.  U.  S.  ¥.\-  v.  Oregon,  etc.,  Ry..  Co.,  32  Fed.  Rep. 

press  Co.,   46   Iowa,   677;    Collins  v.  51  ;  Furman  w.  Union  Pacific  Ry.  Co., 

Burns,  4  J.  &  Sp.  518  ;   Bush  v.   St.  106  N.  Y.  579  ;  Wernwag  v.  P.  W.  & 

L.  K.  C.  &  N.  Ry.  Co.,  3  Mo.  App.  B.  R.  R.  Co.,  117  Pa.  St.  46  ;  Chester 

62 ;  Hieskell  v.  Farmers  &  Mechanics'  Bank  v.  A.  &  C.  Ry.  Co.,  25  S.  C. 

Nat.  Bank,  8  Norris,  155  ;  Boatman's  216;   Merchant's  Desp.   v.   Merriam, 

Saving  Bank  v.  West  &  C.  R.  R.  Co.,  Ill  Ind.  5;   Wilson  v.  Adams  Exp. 

81  Ga.  221.  Co.,  27  Mo.  App.  360. 


«  Forsythe  v.  Walker,  9  Barr,  148.        ^4  Otto,  549. 
s  124  Mass.  503.     See  also  Bank  v. 


303 


g  415.]  BILLS   OF   LADING.  [CIIAP.  XXIX. 

certain  goods  received  for  transportation  to  a  place  mentioned 
in  the  bill  of  lading  were  the  property  of  the  shipper,  delivered 
them  to  a  third  person  on  the  consignee's  order  at  the  place  of 
shipment.  The  carrier  was  held  liable  to  the  shipper  for  the 
value  of  the  goods. 

"Where  goods  are  sent  to  two  consignees  jointly,  delivery  to 
either  is  delivery  to  both^  and  if  goods  are  directed  to  A.  care 
of  B.,  delivery  to  B.  is  sufficient.^ 

AVhere  a  bill  of  lading  is  issued  for  delivery  to  the  shipper's 
order,  the  carrier  is  bound  to  deliver  to  no  one  who  has  not 
the  order.  If  the  indorsee  is  unknown,  diligent  search  must 
be  made  for  him.^  A  bill  of  lading  is  not  evidence  of  delivery 
to  the  consignee.  That  ought  to  be  shown  by  legal  evidence 
independently  of  the  bill  of  lading.* 

§  415.  The  consignor's  marks  on  goods  are  no  excuse  for  an 
unauthorized  entry  on  the  bill  of  lading  made  by  the  carrier, 
whereby  a  wrong  delivery  is  made  or  loss  occasioned,'  and 
marks  on  goods  copied  into  the  bill  of  lading  cannot  be  used 
to  contradict  the  language  used  in  the  body  of  the  bill.  Thus 
in  Wheeler  v.  St.  L.  and  Southeastern  Ry.  Co.,'  the  defendant  con- 
tracted to  carry  the  goods  of  the  plaintiff  "  to  JSTashville,  Tenn., 
there  to  be  delivered  to  J.  E.  Butler  or  order,  etc."  Under  the 
head  of  marks  following  the  above  in  one  of  the  bills  of  lading 
were  the  words  "J.  E.  Butler,  Atlanta,  Ga."  In  two  others 
the  words  "  Atlanta,  Ga."  immediately  followed  the  name  of 
consignee  where  it  first  occurred.  Tlie  court  held  that  the 
defendant  was  bound  to  carry  only  to  Nashville.  The  "  marks" 
on  packages  might  serve  for  an  address,  but  the  copies  of  them 
in  the  bills  of  lading  could  serve  no  purpose  but  to  identify 
the  parcels.  They  could  not  contradict  the  language  used  in  the 
body  of  the  contract,  which  was  plainly  that  the  goods  should 
be  delivered  at  the  company's  freight  station  at  Nashville. 

'  Wells   V.   Am.    Express   Co.,   44  •*  Flower   v.    Downs,    12    Robinson 

Wise.  342.  (La.),  101. 

2  Ela  V.  A.  M.  U.  Express  Co.,  29  ^  Forsythe  v.  Walker,  9  Barr,  148. 

ib.  611.  «  3  Mo.  App.  359. 

»  The  Thames,  14  Wall.  98  ;  Mayer 
V.  Gr.  Tr.  Ry.  Co.,  31  U.  C.  C.  P.  248. 

304 


CHAP.  XXX.] 


MUNIMENT    OF   TITLE. 


[§  417. 


CHAPTER  XXX. 

A  BILL  OF  LADING  IS  A  MUNIMENT  OF    TITLE_A  SYMBOL 
OF  THE  GOODS-A  MEANS  OF  TRANSFERRING  TITLE. 


Bill  of  lading  is  a  muniment  of  title, 
§416. 

Bill  is  a  symbol  or  representative  of 
the  goods,  §  417. 

Bill  is  evidence  of  an  insurable  interest 
in  the  cargo  in  prize  courts  in  Eng- 
land, §418. 

And  in  American  prize  courts,  §  419. 

Delivery  of  the  bill  is  a  sufficient  deli- 
very of  the  goods  within  the  statute 
of  frauds,  §  420. 

Bill  of  lading  is  a  means  of  transferring 
title,  §  421. 


Right  of  a  vendee  to  demand  a  bill  of 
lading,  §  422. 

Vendee  is  not  entitled  to  all  existing 
copies  of  the  bill  of  lading,  §  423. 

Duration  of  the  bill  of  lading's  availa- 
bility as  a  symbol,  §§  424,  425. 

Duration  where  there  is  a  continuous 
carriage  on  several  connecting  lines, 
§426. 

PI  older  of  the  bill  of  lading  is  not  bound 
to  give  notice  of  his  title,  §  427. 


§  416.  It  has  been  seen  that  the  bill  of  lading  operates  as  a 
receipt  for  the  goods  therein  specified  and  as  a  contract  for 
their  carriage.  There  remains  for  consideration  a  third  office 
of  the  instrument,  which  gives  rise  to  a  third  set  of  questions 
of  the  highest  importance  and  of  no  little  difficulty.  In  this 
division  of  the  work  will  be  examined  the  bill  of  lading  as 
evidence  of  ownership  of  the  goods  and  as  a  means  of  trans- 
ferring the  title  to  them. 

§  417.  Stated  in  its  broadest  terms,  the  principle  governino- 
the  bill  of  lading  as  a  muniment  of  title  is,  that  the  bill  repre- 
sents the  goods  themselves  symbolically  and  the  effects  of  its 
possession  or  transfer  are  to  be  controlled  by  considerations 
peculiar  to  symbols  alone  and  not,  on  the  one  hand,  solely  by 
the  principles  regulating  the  possession  and  transfer  of  actual 
goods  and  chattels,  nor,  on  the  other  hand,  solely  by  those 
regulating  the  possession  and  transfer  of  instruments  represent- 
ing pure  value  measured  by  a  monetary  standard.  The  pur- 
poses for  which  a  symbol  of  property  may  be  made  in  any 
way  available  are  obviously  two.  If  it  possess  any  validity 
20  305 


g  418,]  BILLS    OF    LADING.  [CIIAP.  XXX. 

ill  law  whatever,  it  will  enable  the  holder  to  obtain  actual 
possession  or  delivery  of  the  goods  represented,  or  equivalent 
daraatres,  or  it  will  enable  him  to  confer  the  right  to  obtain 
that  possession  or  delivery  upon  another,  by  transferring  to 
the  latter  the  symbol  which  entitles  him  to  it.  These 
offices  belong  to  the  bill  of  lading.  AVhile  the  goods  them- 
selves are  out  of  the  possession  of  the  owner,  in  transit, 
either  by  land  or  by  water,  to  their  destination,  the  bill  repre- 
sents them  and  by  its  means  the  owner  is  enabled  to  do  with 
them  symbolically  whatever  he  might  do  actually,  were  they 
under  his  immediate  control.  Representing  the  goods,  the  bill 
is  2)rima  facie  evidence  of  the  consignee's  title.  Possession  of 
the  bill  raises  the  same  presumption  for  this  j^urpose  as  pos- 
session of  the  goods  themselves. 

§  418.  The  consignee's  production  of  a  bill  of  lading  consti- 
tutes ordinarily  prima  facie  evidence  of  an  insurable  interest  in 
the  goods. ^     In  England,  however,  the  contrary  rule  seems  to 
be  established  by  the  case  of  The  John  Bellamy,'^  in  whicli  the 
parties  were  the  insurers  of  a  cargo  which  had  been  lost  in  a  col- 
lision and  the  owners  of  the  vessel  which  had  been  found  at 
fault  and  condemned  in  damages, — the  insurers  having  paid  for 
a  total  loss  upon  the  cargo  previously  to  the  institution  of  the 
suit.     The  plaintifl's  produced  the  policies  of  insurance,  which 
had  been  given  up  to  them,  the  invoice,  a  copy  of  the  manifest 
and  the  bills  of  lading.     The  plaintiffs'  right  to  recover  was 
held  not  to  be  sufficiently  established  by  the  evidence,  since  it 
had  not  beeii  proved  that  the  shippers  were,  or  represented,  the 
owners  of  the  cargo,  who  were  the  real  parties  to  be  indemnified 
by  the  party  condemned, — the  latter  having  a  right  to  be  secured 
against  liability  to  a  future  demand  by  the  possible  possessors 
of  a  better  title  than  that  furnished  by  the  shippers  to  the  un- 
derwriters,    "  With  respect  to  the  fact  of  insuring,"  said  the 
Court,  "the  insured  may  have  insured  as  agent  or  harve  had  an 
insurable  interest  of  his  own  in  the  goods  distinguishable  from 
property  in  them.     The  shipper  is  the  agent  of  the  owner  to 
put  the  goods  on  board,  but  I  am  not  satisfied  that  the  insur- 

1  Talcott  V.   Delaware  Ins.   Co.,   2        ^  l    K.  3  Adm.  129. 
Wasli.  C.  C.   449;    Blagg  r.   Phoenix 
Ins.  Co.,  3  Id.  5. 

306 


CHAP.  XXX.]    •  MUNIMENT    OF   TITLE.  [§  419. 

anee  of  the  goods  is  within  the  scope  of  his  agency  and  no 
special  circumstance  is  suggested  in  the  case  before  me."  As 
to  the  bill  of  lading,  which  in  this  case  had  been  drawn  in 
quadruplicate,  the  Court  said:  "This  instrument  is  not  jper  se 
incontrovertible  evidence  that  the  property  specified  has  passed 
to  the  holder ;  ....  it  does  not  prove  that  the  shipper  is  the 
owner.  It  may  be  that  one  of  these  bills  of  lading  has  been 
delivered  at  an  earlier  date  to  some  person  other  than  the  un- 
derwriter, which  other  person  would,  on  the  ground  of  his 
earlier  possession  of  the  bill  of  lading,  have  a  prior  title  to  the 
goods,"  citing  Barber  v.  Meyerstein^  and  Couturier  v.  Hastie.^ 
It  was  accordingly  held  that  the  defendants  were  entitled  to  re- 
quire evidence  of  a  discharge  from  the  original  owners. 

§  419.  In  American  prize  courts  a  bill  of  lading  consigning 
goods  to  a  neutral,  though  unaccompanied-  by  an  invoice  or 
letter  of  advice,  is,  while  not  in  itself  sufficient  evidence  to  en- 
able a  claimant  thereunder  to  obtain  restitution,  a  sufficient 
foundation  to  permit  the  introduction  of  further  proof,^  but 
both  in  cases  involving  the  rights  of  neutrals  on  the  high  seas* 
and  in  those  involving  the  insurance  of  property  lost  or  cap- 
tured^  the  bill  of  lading  is  not  the  only  evidence  nor  always 
the  best  evidence  of  ownership.  Its  authenticity  or  truth 
may  be  attacked  by  either  party.  It  is  with  great  reason  that 
in  prize  cases  a  comparatively  slight  importance  should  be  at- 
tached to  the  bill  of  lading  as  an  evidence  of  ownership,  since 
it  is  so  frequently  the  case  that  during  war,  goods  shipped  by 
sea  are  given  a  false  apparent  ownership  for  the  very  purpose 
of  saving  them  from  confiscation  in  case  of  capture.^  The  bill 
of  lading  for  an  outward-bound  cargo  is  of  course  no  evidence 
of  any  title  in  the  return  cargo.^ 

^  L.  R.  4  H.  L.  317.  ^  It  was  said,  however,  in  The  St. 

2  5  H.  L.  C.  673.  Jose  Indiano,  1  Wheat.  208,  that  "in 

3  The  Friendschaft,  3  Wheat.  14.  general  the  rules  of  the  prize  court  as 
*  United  States  v.  Jones,  3  Wash,  to   tlie    vesting   of  property   are    the 

C.   C.   209;  The  St.  Jose  Indiano,  1     same  with  those  of  the  common  law ;" 
Wheat.  208.  P-  212. 

5  Maryland  Ins.   Co.    v.   Paiden,    6        '  Beale  v.  Pettit,   1    Wash.   C.    C. 
Cranch,   338;    Blagg   v.   Phoanix  Ins.     241. 
Co.,  3  Wash.  C.  C.  5. 

307 


I  421.1  BILLS    OF   LADING.  [CIIAP.  XXX. 

§  420.  The  character  and  effect  of  a  bill  of  lading,  as  that 
of  a  representative  equivalent  of  specific  goods,  is  well  exem- 
plified in  the  cases  relating  to  sales  of  goods  as  affected  by  the 
Statute  of  Frauds.  The  delivery  of  the  bill  of  lading  to  the 
consignee  is  held  to  be  a  delivery  sufficient  to  satisfy  the 
statute.*  In  general,  where  goods  are  bought  to  be  sent  to 
the  buyer,  delivery  to  a  carrier,  either  general  or  specially 
designated  by  the  buyer,  is  a  sufilcient  delivery  and  vests  title 
to  them  in  the  latter,  although  it  must  be  borne  in  mind  that 
acceptance  as  well  as  delivery  is  necessary.  Even  a  delivery 
to  a  carrier  designated  by  the  purchaser  will  not  satisfy  the 
statute  where  the  carrier  has  no  authority  other  than  to  trans- 
port the  goods.  Where,  however,  the  bill  of  lading  is  delivered 
to  the  consignee  or  his  representative  and  accepted,  the  statute  is 
satisfied.  It  follows,  conversely,  that  the  delivery  of  a  bill  of 
lading  to  an  agent  who  has  no  authority  to  act  and  its  accept- 
ance by  him,  can  of  themselves  have  no  force  to  take  the  case 
out  of  the  statute.'^  This  rule  is  laid  down  in  an  English  ease, 
even  where  the  vendee  knew  of  the  receipt  of  the  bill  by  an 
unauthorized  agent,  but  did  and  said  nothing  to  disaffirm  the 
acceptance.^  So,  if  the  buyer  obtains  a  bill  of  lading  from  the 
seller,  without  any  intention  on  the  part  of  the  seller  to  deliver 
it  and  insists  on  retaining  possession  of  it  against  the  remon- 
strance of  the  seller,  he  cannot  avail  himself  of  it  to  bar  the 
operation  of  the  statute.'* 

§  421.  The  office  of  the  bill  of  lading,  not  only  as  a  means  of 
safely  retaining  and  securing  the  owner's  title  while  the  owner- 
ship and  the  immediate  possession  of  the  property  are  secured, 
but  as  an  instrument  for  legally  transferring  either  the  owner- 
ship or  the  right  to  possession  upon  the  termination  of  the 
transit,  or  both,  is  thoroughly  established.  It  is  an  undoubted 
general  principle  that  as  effective  a  transfer  of  title  and  of  the 
right  to  delivery  may  be  made  by  the  owner's  transfer  of  the 
bill  of  lading  as  could  be  made  by  a  physical  delivery  of  the 
goods  themselves.     "  A  cargo  at  sea,  while  in  the  hands  of  the 

'   Aiulenried  v.  Randall,  3  Clifford,  3  Meredith  v.  Meigh,   2  El.   &  Bl. 

99;  Rodgersy.  Phillips,  40  N.Y.  527.  363. 

2  Quintard  v.  Bacon,  99  Mass.  185.  ••  Brand  v.  Focht,  1  Abb.  App.  185. 
308 


CHAP.  XXX.]  MUNIMENT    OF   TITLE.  [§  423. 

carrier,  is  necessarily  incapable  of  physical  deliver3^  During 
this  period  of  transit  the  bill  of  lading  by  the  law  merchant  is 
universally  recognized  as  its  symbol  and  the  indorsement  and 
delivery  of  the  bill  of  lading  operates  as  a  symbolical  delivery  of 
the  cargo.  Property  in  the  goods  passes  by  such  indorsement 
and  delivery  of  the  bill  of  lading,  whenever  it  is  the  intention  of 
the  parties  that  the  property  should  pass,  just  as  under  similar 
circumstances  the  property  would  pass  by  an  actual  delivery  of 

the  goods It  is  a  key  wdiich  in  the  hands  of  the  rightful 

owner  is  intended  to  unlock  the  door  of  the  warehouse,  floating 
or  fixed,  in  which  the  goods  may  chance  to  be."' 

§  422.  When  a  bill  of  lading  may  be  rightfully  demanded  in 
accordance  with  the  terms  of  a  contract  of  sale,  the  vendee 
of  goods  is  entitled  to  it,  as  soon  as  it  is  transmitted  to  the 
consignors,  or  their  agents,  at  the  terminus  of  the  transit, 
without  reference  to  the  arrival  or  unloading  of  the  cargo. 
Where  it  is  the  evident  intent  of  the  contract  that  the  bill  of 
lading  shall  be  sent  as  soon  as  it  can  be,  a  refusal  of  the  vendor 
to  deliver  it  within  a  reasonable  time  after  its  arrival,  whether 
the  goods  themselves  have  arrived  or  not,  justifies  the  vendee 
in  rejecting  the  purchase.^  The  case  is  of  course  stronger 
where  there  is  a  specific  agreement  between  a  commission  mer- 
chant who  makes  advances  for  the  consignor's  purchase  of  the 
goods  shipped  and  such  consignor  that  the  latter  shall  forward 
to  the  former  a  bill  of  lading  to  secure  such  advance.  A  trans- 
action of  this  kind  is  in  fact  an  equitable  pledge  of  which  a 
court  of  equity  would  decree  specific  performance.^ 

§  423.  The  consignee  is  not  entitled  to  demand  all  existing 
copies  of  the  bill  of  lading.  If  onl}^  one  copy  of  the  bill  has 
been  indorsed,  the  delivery  of  that  copy  Avith  the  intention  to 
pass  the  property  is  all  that  the  vendee  is  entitled  to  demand, 
although  the  bill  has  been  drawn  in  triplicate  and  the  re- 
maining copies  are  not  tendered.  It  seems  that  he  cannot  insist 
that  the  remaining  bills  shall  be  delivered  in  time  for  him  to 
forward  them  so  that  they  may  be  at  the  port  of  delivery  either 
before  the  arrival  of  the  goods  or  before  charges  are  incurred 

*  Bowan,  L.  J.,  Sanders  v.  Mac-  '  Lutscher  v.  t^omtoir  d'Escompte 
lean,  11  Q.  B.  Div.  327.         "  do  Paris,  L.  R.  12  B.  D.  709. 

2  Barber  v.  Tavlor,  5  M.  &  W.  527. 

309 


§  425.]  BILLS    OF   LADING.  [CHAP.  XXX. 

ill  respect  to  them.  He  can  only  demand  that  the  vendor  shall 
make  every  reasonable  exertion  so  to  do.^ 

§  424.  As  a  general  rule  the  bill  of  lading  continues  to  repre- 
sent the  goods  only  so  long  as  they  are  in  transit.  The  general 
principle  of  the  law  in  dealing  with  title  to  personal  property, 
other  than  that  evinced  by  possession,  is  that  the  owner  must 
do  all  that  is  within  his  power  to  approximate  as  closely  as 
possible  to  actual  or  constructive  possession.  His  title  must  be 
evinced  by  all  the  indicia  possible.  Upon  this  ground  it  has 
been  held  that  dock  warrants  and  warehouse  receipts  are  not 
muniments  of  title  of  as  high  and  conclusive  an  order  as  bills 
of  lading, — the  delivery  of  the  former  not  being  equivalent 
to  a  delivery  of  the  goods  themselves  as  is  generally  the 
case  with  the  latter.^  The  two  classes  of  instruments  differ 
from  each  other  in  this  respect:  that  when  goods  are  at  sea, 
the  purchaser  who  takes  the  bill  of  lading  has  done  all  that 
is  possible  in  order  to  take  possession  of  the  goods, — there  being 
a  physical  obstacle  to  his  seeking  out  the  master  of  the  ship  and 
requiring  him  to  attorn  to  his  rights,  but  when  the  goods  are  on 
land  there  is  no  reason-  why  a  person  who  receives  a  delivery 
order  or  dock  warrant  should  not  at  once  lodge  it  with  the 
bailee  and  so  take  actual  or  constructive  possession  of  the 
goods.^  Ordinarily  the  bill  of  lading  becomes /c«;c^t/s  O'fficio  as 
soon  as  the  goods  are  landed  and  warehoused  in  the  name  of  the 
holder,  who  thereupon  no  longer  derives  his  power  to  control 
them  from  his  possession  of  the  bill.* 

§  425.  In  Meyersteiu  v.  Barber,^  however,  it  was  held  that 
the  vitality  of  the  bill  of  lading  as  a  muniment  of  title  was 
not  necessarily  exhausted  as  soon  as  the  goods  were  landed  at 
their  destination,  but  it  continued  to  be  a  transferable  symbol 
of  the  property  when  the  goods,  though  actually  landed  at  a 
wharf,  were  subject  to  a  stop  order  for  freight.  The  bill  in 
that  case  had  been  drawn  up  in  a  set  of  three.  The  first  two 
were  indorsed  to  the  plaintitf  upon  an  advance  by  the  latter 
and  the  third,  thus  fraudulently  retained  by  the  consignee,  was 

'  Sanders  v.  MacLean,  L.  R.  11  Q.  "  Hatfield  v.  Phillips,   9  M.   &  W. 

B.  Div.  327.  649. 

2  Farina  I'.  Home,  16  M.  &AV.  119.  «  £,.  R.  4  H.  L.  317. 
2  Blackburn  on  Sales,  297. 

310 


CHAP.  XXX.]  MUNIMEJ^T    OF   TITLE.  [§  426* 

subsequently  pjedged  to  the  defendant  for  an  advance  by  him. 
The  consignee  then  obtained  a  removal  of  the  stop  wliich  had 
been  put  upon  the  goods  by  the  ship-owners  for  freight  and 
the  defendant  obtained  possession  under  the  bill  held  by  him. 
The  case  turned  upon  the  question  whether  the  bills  of  lading 
had  full}-  performed  their  office  at  the  time  when  the  plaintiff 
received  them.  It  was  contended  on  the  defendant's  behalf 
that  such  was  the  case.  The  court  held,  however,  that  a  bill 
of  lading  remains  in  force,  not  only  until  the  goods  are  landed, 
but  until  the  freight  is  paid  and  the  whole  matter  which  is  the 
subject  of  the  contract  of  the  ship-owner  has  been  achieved. 
"  When  the  goods  have  arrived  at  the  dock,  until  they  are 
delivered  to  some  person  who  has  the  right  to  hold  them,  the 
bill  of  lading  still  remains  the  only  symbol  that  can  be  dealt 
with  by  way  of  assignment  or  mortgage  or  otherwise.  As 
soon  as  delivery  is  made,  or  a  warrant  for  delivery  has  been 
issued,  or  an  order  for  delivery  accepted  (which  in  law  would 
be  equivalent  to  delivery),  then  those  symbols  replace  the  sym- 
bol which  before  existed.  Until  that  time  bills  of  lading  are 
effective  representations  of  the  ownership  of  the  goods  and 
their  force  does  not  become  extinguished  until  possession,  or 
what  is  equivalent  in  law  to  possession,  has  been  taken  on  the 
part  of  the  person  having  a  right  to  demand  it." 

§  426.  Wlien  merchandise  is  transported  to  its  destination 
over  several  lines  of  railroad  or  water  carriage,  the  bill  of 
lading  issued  at  the  starting-point  is  not  necessarily  functus 
officio  upon  the  arrival  of  the  goods  at  the  termination  of  the 
first  stage  of  the  transit,  but  may,  by  custom  or  contract,  re- 
main in  force  until  the  final  destination  is  reached.  Thus,  in 
Forbes  v.  Boston  and  Lowell  Railroad  Company,^  it  was  proved 
to  be  the  usual  course  of  business  in  transporting  grain  from 
Chicago  to  Boston  to  ship  it  by  water  to  an  intermediate  point 
and  thence  to  Boston  by  rail.  A  bill  of  lading  was  issued  at 
Chicago,  making  the  grain  deliverable  to  the  shipper  at  the 
intermediate  point.  There  a  railroad  receipt  was  given  con- 
taining a  memorandum,  which  indicated  that  the  grain  was 

1  133  Mass.  154. 

311 


g  427.]  BILLS    OF   LADING.  [CHAP.  XXX. 

received  from  a  vessel  arriving  from  Chicago  aad  that  a  bill  of 
lading  had  been  issued  by  the  vessel  and  was  still  outstanding. 
The  vessel's  bill  was  regarded  as  transferring  the  property  and 
it  alone  was  used  in  obtaining  the  goods  from  the  carrier.  It 
was  held  that  the  vessel's  bill  did  not  become  functus  officio 
upon  the  arrival  of  the  grain  at  the  intermediate  point,  but 
continued  to  represent  the  cargo  until  its  arrival  in  Boston. 

§  427.  One  who  holds  a  valid  title  to  or  interest  in  merchan- 
dise, as  the  holder  of  a  bill  of  lading  received  by  him  in  good 
faith  and  for  value  from  one  having  a  title  so  transferable,  is 
not  bound  to  give  notice  of  his  title  to  the  carrier  or  to  take 
any  further  measures  to  protect  his  interest,  though  he  must 
not  be  guilty  of  laches  or  of  such  acts  as  will,  estop  him  from 
settino-  up  his  title.^     Upon  his  failure  to  obtain  actual  or  con- 
structive possession  of  the  goods,  his  remedy  may  be  in  some 
cases  against  the  carrier  and  in  others  against  parties  who  have 
obtained  the  goods  from  the  carrier ;  but  his  right  to  take  the 
goods  or  to  obtain  equivalent  damages  remains  unimpaired.    It 
is  the  carrier's  duty  to  deliver  the  goods  to  the  party  mentioifed 
in  the  bill  as  the  one  who  is  to  receive  them.     When  there  has 
been  an  indorsement  or  assignment  it  is  the  duty  of  the  carrier 
to  deliver  the  goods  to  the  indorsee  or  assignee.     When  there 
are  several  copies  of  the  bill  the  goods  may  properly  be  deliv- 
ered to  the  first  party  presenting  one  of  them  if  there  be  no 
notice  of  other  indorsements  of  the  other  copies,  although  an- 
other has  a  paramount  title  by  virtue  of  a  prior  indorsement.^ 
In  such  a  case  the  prior  indorsee  is  remitted  to  his  remedy 
against  the  party  who  obtained  the  goods.^     He  may  justify  a 
non-delivery  to  the  holder  of  the  bill  of  lading  by  interposing 
the  fus  tertii,  but,  except  in  the  case  of  duplicate  or  triplicate 
bills,  he  cannot  excuse  himself  for  a  delivery  to  the  wrong  per- 
son on  the  ground  that  the  holder  of  the  bill  of  lading  was  un- 
known to  him  and  gave  him  no  notice  of  his  title.     If  after 
diligent  inquiry  the  holder  of  the  bill  cannot  be  found,  it  is  the 

•  See  Forbes  v.   Boston  &  Lowell        =»  Meyerstein  v.  Barber,  L.  R.  4  H. 
R.  Co.,  133  Mass.  154.  L.  317. 

*  Glynn   v.    East   and   West   India 
Dock  Co.,  L.  R.  7  App.  605. 

312 


CHAP.  XXX.]  MUNIMENT    OF    TITLE.  ["§  427. 

carrier's  duty  to  retain  the  goods  upon  storage  until  a  rightful 
claim  to  them  is  established.  If  by  failure  so  to  do  the  indorsee 
is  deprived  of  his  title,  whatever  damage  has  been  suftered  by 
the  conversion,  may  be  recovered  from  the  carrier.^ 

^  The  Thames,  14  Wall.  98;  Forbes     L.  R.  4  H.  I..  3]  7  ;  Glynn  v.  East  and 
V.    Boston   and   Lowell   R.   Co.,    133     West  India  Dock  Co.,  L.  R.  7  App. 
Mass.  154;   Farmers'  Bank  v.  Logan,     605. 
74  N.  y.  568 ;  Meyerstein  v,  Barber, 

313 


§  428.] 


BILLS   OF   LADING. 


[CIIAP.  XXXI. 


CHAPTER  XXXI. 

BILLS   OF   LADING   ISSUED   BY    CARRIERS   WITHOUT 
RECEIVING  THE  GOODS. 


Carrier  is  not  liable  on  such  an  unau- 
thorized issuance  by  his  agent.  Grant 
V.  iSTorway,  §§  428,  429. 

Effect  of  the  English  Bills  of  Lading 
Act,  §  430. 

Issuance  of  second  bill  for  goods  re- 
ceived, §  431. 

American  cases — The  Schooner  Free- 
man V.  Buckingham,  §  432. 

The  rule  applies  to  bills  issued  by 
shipping  agents,  §  433. 


The  contrary  rule  prevails  in  some 
jurisdictions — New  York,  Kansas, 
Nebraska,  §  434. 

Statutes  providing  that  bills  of  lading 
shall  be  conclusive  evidence  of  the 
receipt  of  the  goods,  §  435. 

The  bill  gives  title  to  goods  received 
subsequently  to  its  issuance,  §  436. 

The  rule  is  not  affected  by  statutes  pro- 
hibiting the  issuance  of  the  bill  with- 
out the  receipt  of  the  goods,  §  437. 


§  428.  It  is  a  necessary  incident  to  the  purely  symbolic 
character  of  the  bill  of  lading  that  it  cannot  have  the  office 
and  effect  of  a  representative  of  goods  where  in  fact  none  have 
been  delivered  to  the  carrier.  It  has  no  value  which  is  fixed 
in  measure  by  anything  but  the  goods  which  it  specifies  and 
declares  to  be  in  the  possession  of  the  particular  carrier  and 
therefore  when  it  fails  to  be  a  symbol  of  those  goods  it  fails  to 
be  a  symbol  of  anything.  Stated  in  this  form  the  proposition 
would  seem  to  be  self-evident,  but  there  grows  out  of  it  a  fur- 
ther question.  Admitting  that  such  a  bill  cannot  possibly  be 
considered  a  representative  of  the  goods  which  it  purports  to 
represent,  how  are  the  relations  w^hich  may  be  created  by  its 
issuance  to  be  adjusted  ?  Does  the  issuing  of  such  a  bill  by  an 
agent  of  the  carrier  impose  upon  the  latter  the  liability  he 
would  incur  as  an  actual  recipient  of  the  goods?  The  answer 
to  this  question  involves  considerations  based  upon  the  prin- 
ciples of  agency,  of  estoppel  and  of  negotiability.  The  ques- 
tion has  been  the  subject  of  many  well-considered  decisions 
and  it  may  now  be  regarded  as  a  thoroughly  settled  principle 
in  a  majority  of  important  commercial  jurisdictions  (though 
314 


CHAP,  XXXI.]  WITHOUT    RECEIVING   THE   GOODS,  [§  429. 

the  contrary  rule  obtains  in  others'),  that  an  agent  cannot  bind 
the  carrier  by  issuing  a  bill  of  lading  for  goods  which  are  not 
delivered  to  him  for  transportation.^  The  adoption  of  this  rule 
has  been  founded  upon  the  cardinal  principle  that  a  servant 
cannot  create  any  liability  upon  the  part  of  his  master  by  the 
commission  of  acts  beyond  the  scope  of  his  ordinary  employ  n)ent. 
This  principle  appeared  in  a  dictum  by  Mr.  Justice  Littledale, 
in  the  case  of  Berkley  v.  Watling,^  decided  by  tbe  King's 
Bench  in  1837,  although  the  same  court  had  decided  a  few 
years  before,  on  what  would  appear  to  b6  the  directly  contrary 
principle,  that  the  ship-owner  who  has  given  a  bill  of  lading 
by  which  freight  appears  to  have  been  paid  before  the  ship's 
departure  from  port  is  estopped,  as  against  an  assignee  of  such 
bill,  from  alleging  that  the  freight  was  not  so  paid.^ 

§  429.  The  leading  English  case  is  that  of  Grant  v.  jSTor- 
way.^  In  that  case  the  subject  was  treated  chiefly  as  a 
question  of  agency.  "The  point  presented,"  said  the  court, 
"  is  whether  the  master  of  a  ship,  signing  a  bill  of  lading  for 
goods  which  have  never  beien  shipped,  is  to  be  considered  as 
agent  of  the  owner  in  that  behalf,  so  as  to  make  the  latter 
responsible.    The  authority  of  the  master  of  a  ship  is  very  large, 

....   but  is  subject  to  several  well-known  limitations 

It  is  not  contended  that  the  captain  had  any  real  authority  to 
sign  bills  of  lading,  unless  the  goods  had  been  shipped.  JSTor 
can  we  discover  any  ground  upon  which  a  party  taking  a  bill 
of  lading  by  indorsement,  would  be  justified  in  assuming  that 
he  had  any  authority  to  sign  such  bills,  whether  the  goods  were 

1  Grant  v.  Norway,  10  C.  B.  665;  v.  Texas,  etc.,  Ry.  Co.,  130  U.  S. 
Coleman  v.  Riches,  16  ib.  103;  Mc-  416;  Batavia  Bank  v.  N.  Y.,  etc., 
Lean  v.  Fleming,  L.  R.  2  H.  L.,  S.     R.  Co.,  106  N.  Y.  195. 

&  B.  App.   128;  Jessel  v.  Bath,  L.  »  7  Ad.  &  El.  29. 

R.  2  Ex.  267  ;   Brown  v.  Powell  Coal  *  Howard  v.  Tucker,  1  Barn.  &  Ad. 

Co.,  L.  R.  10  C.  P.  362;   Berkley  v.  712.     The  cases  maybe  reconcilable 

Watling,    7    Ad.    &    El.   29 ;    Erb   v.  upon  the  ground  that  issuing  a  receipt 

Great    Western    Rwy.  Co.,   5    Duval  for  freight  charges  is  within  the  cap- 

(Canada),  179.  tain's   powers.   Grant   v.  Norway,   10 

2  The  Schooner  Freeman  v.  Buck-  C.  B.  680,  though  he  cannot  bind  the 
Ingham,  18  How.  182;  Pollard  v.  owners  by  a  contract  to  carry  freight 
Vinton,    105    U.    S.     7;    The    Lady  free.     Ib.  687. 

Franklin,  8    Wall.  325;    Friedlander        «  10  C.  B.  665. 

315 


§  429.]  BILLS   OF   LADING.  [CHAP.  XXXI. 

on  board  or  not.  If,  then,  from  the  usage  of  trade  and  the 
general  practice  of  ship-masters,  it  is  generally  known  that  the 
master  derives  no  such  authority  from  his  position  as  master, 
the  case  may  be  considered  as  if  the  party  taking  the  bill  of 
ladino"  had  notice  of  an  express  limitation  of  the  authority  and 
in  that  case,  undoubtedly,  he  could  not  claim  to  bind  the  owner 
by  a  bill  of  lading  signed,  when  the  goods  therein  mentioned 
were  never  shipped.  The  very  nature  of  a  bill  of  lading 
shows  that  it  ought  not  to  be  signed  until  goods  are  on  board, 
for  it  begins  by  describing  them  as  "  shipped."  The  general 
usage  gives  notice  to  all  people  that  the  authority  of  the  captain 
to  give  bills  of  lading  is  limited  to  such  goods  as  have  been  put 
on  board  and  a  party  taking  a  bill  of  lading,  either  originally 
or  by  indorsement,  for  goods  which  have  never  been  put  on 
board  is  bound  to  show^  some  particular  authority  given  to  the 
master  to  sign  it."^  The  case  is  of  course  made  doubly  strong 
where  a  plaintiff  consignee,  in  an  action  against  the  owners  of 
the  ship,  is  also  the  shipper  and  alleges  that  he,  the  plaintifl', 
caused  the  goods  to  be  shipped ;  since,  in  such  a  case,  the  plain- 
tifl' can  support  his  issue  only  by  making  the  defendant,  and 
consequently  the  latter's  agent,  his  agent  and  thereby  aftecting 
himself  as  principal  with  knowledge  of  the  fact  that  the  goods 
were  not  shipped.^  No  liability  can,  of  course,  be  imposed 
upon  the  owner  by  his  master's  false  bill  where  the  former  has 
himself,  or  by  a  separate  agent,  assumed  the  exclusive  perform- 
ance of  a  master's  duties  by  loading  his  own  ship.^  In  Canada 
the  rule  of  Grant  v.  Norway  has  been  adopted,  though  not 
without  a  vigorous  dissent,  notably  in  the  case  of  Erb  v.  Great 
Western  Railway  Co.,*  in  which  the  question  divided  succes- 
sively the  Queen's  Bench,  the  Court  of  Appeals  and  the 
Supreme  Court. 

1  Coleman  v.  Riches,  16  C.  B.  103;  ^  Walter  v.  Brewer,  11  Mass.  99. 
Mcl.ean  v.  Fleming,   L.  R.  2  H.  L.,  *  42  Up.  Can.   Q.   B.,  90  ;  3  Tup- 
S.  &  Pi.  App.  C.  128;  Jesse.l  y.  Bath,  per,  446;    5  Duval,  179.     See,  also, 
L.  R.  2   Ex,    267;    Brown  v.  Powell  Oliver  r.  Great  Western  Railway  Co., 
Coal  Co.,  L.  R.  10  C.  P.  562.  28  Up.  Can.  C.  P.  143. 

2  Berkley  v.  Watling,   7  Ad.  &  El. 
29. 

316 


CHAP.  XXXI.]  WITHOUT    RECEIVING   THE   GOODS.  [§  430. 

§  430.  In  England  it  is  now  provided  by  the  Bills  of  Lading 
Act,^  that  every  bill  of  lading  in  the  hands  of  a  consignee  or 
indorsee  for  valuable  consideration,  representing  goods  to  have 
been  shipped  on  board  a  vessel,  shall  be  conclusive  evidence  of 
such  shipment  as  against  the  master  or  other  person  signing 
the  same,  notwithstanding  that  such  goods  or  some  part  thereof 
may  not  have  been  so  shipped,  unless  such  holder  of  the  bill  of 
lading  shall  have  had  actual  notice  at  the  time  of  receiving  the 
same,  that  the  goods  had  not  been  in  fact  laden  on  board ; 
provided  that  the  master,  or  other  person  so  signing,  may  ex- 
onerate himself  in  respect  of  such  misrepresentation  by  showing 
that  it  was  caused  without  any  default  on  his  part,  and  wholly 
by  the  fraud  of  the  shipper,  or  of  the  holder,  or  some  person  under 
whom  the  holder  claims.  This  Act  has,  however,  no  elFect  in 
modifying  the  principle  of  Grant  v.  JN^orway.  It  only  makes  the 
bill  conclusive  against  the  master  or  other  person  signing  it. 
In  Jessel  v.  Bath,^  in  which  the  question  arose  under  the  statute 
for  the  first  time,  the  shipping  agent  of  the  defendants,  who 
were  charterers  of  a  ship,  signed  a  bill  of  lading  for  manganese 
in  bulk,  which  was  found  upon  arrival  to  be  short  of  the  weight 
stated  in  the  bill.  The  plaintiff  was  an  assignee  of  the  bill  for 
value  and  the  action  was  for  damages  for  non-delivery  of  the 
full  weight.  Bramwell,  B.,  after  saying  that  at  common  law 
the  defendants  would  not  be  liable  upon  the  bill,  since  their 
agents  had  no  power  to  make  an  admission  contrary  to  the  fact, 
proceeded :  "  Then,  does  the  statute  make  any  ditference  ?  I 
think  not;  it  seems  to  me  only  to  mean  that  the  person  actually 
signing  the  bill  of  lading  shall  be  liable.  If,  for  instance,  an 
owner  had  signed  it,  it  would  be  conclusive  against  him,  but  it 
would  not  be  so  against  the  other  owners.  If,  then,  the  bill  of 
lading  is  only  conclusive  against  the  person  actuallj^  signing, 
the  defendants,  not  being  the  signers  of  the  bill  in  question,  are 
not  made  liable  hy  the  statute."  This  view  has  been  adopted 
in  a  subsequent  case,  and  the  non-applicability  of  the  statute 
casting  the  decision  upon  the  principles  of  the  common  law, 
the  rule  of  Grant  v.  Norway  has  been  sustained.^     It  is  to  be 

1  18  &  19  Vict.,  c.  Ill,  S.  3.  "  Brown  v.  Powell  Coal  Co.,  L.  R. 

2  L.  R.  2  Ex.  267.  10  C.  P.  562. 

317 


I  432.]  BILLS   OF   LADING.  [CIIAP.  XXXI. 

noted,  however,  that  the  decision  in  Jessel  v.  Bath  ought  not  to 
be  considered  as  going  to  the  length  of  exempting  from  liability 
all  persons  except  those  who  actually  place  their  own  manual 
signature  upon  the  bill.  An  authority  to  another  to  sign  one's 
name  is  as  binding  as  the  latter,  provided  the  limits  of  the 
authority  are  not  exceeded.  The  statute  would  embrace  the 
signature  by  another  of  the  name  of  a  person  who  intends  that 
thereby  he  himself  shall  be  bound.^ 

§  431.  The  principle  of  Grant  v.  Norway  was  carried  a  step 
further  in  the  case  of  Hubbersty  v.  Ward,''  in  which  it  was 
sought  to  hold  the  owner  of  the  vessel  liable  for  the  negligence 
of  his  master  in  issuing  a  bill  for  goods  for  which  a  bill  had 
already  been  given.  Counsel  for  the  plaintiffs  conceded  the 
principle  of  Grant  v.  JN'orway  to  be  correct,  but  attempted  to 
distinguish  the  case  at  bar  on  the  ground  that  the  master  is  the 
agent  of  the  owner  to  give  bills  of  lading  for  goods  on  board 
and  his  signature  to  a  second  bill  of  such  goods  is  therefore 
binding  on  the.owmer.  The  court  was  of  the  opinion,  however, 
that  when  the  master  has  signed  bills  for  a  cargo  actually 
aboard  his  vessel,  his  power  as  an  agent  ;g  exhausted  and  can- 
not be  again  exercised  to  the  prejudice  of  his  principal. 

§  432.  The  same  doctrine  has  been  announced  by  the  Supreme 
Court  of  the  United  States.  In  the  case  of  The  Schooner 
Freeman  v.  Buckingham,^  that  court  said  :  "  If  the  signer  of  a 
bill  of  lading  was  not  the  master  of  the  vessel,  no  one  would 
suppose  the  vessel  bound  and  the  reason  is  because  the  bill 
is  signed  by  one  not  in  privity  with  the  owner.  But  the  same 
reason  applies  to  a  signature  made  by  a  master  out  of  the  course 
of  his  employment.  The  taker  assumes  the  risk,  not  only  of 
the  genuineness  of  the  signature  and  of  the  fact  that  the  signer 
w^as  master  of  the  vessel,  but  also  of  the  apparent  authority  of 
the  master  to  issue  the  bill  of  lading.  We  say  the  apparent 
authority,  because  any  secret  instructions  by  the  owner,  incon- 
sistent with  the  authority  with  which  the  master  appears  to  be 
clothed,  would  not  affect  third  persons.  But  the  master  of  a 
vessel  has  no  more  apparent  authority  to  sign  bills  of  lading 

'  See    remarks    of    Brett,    J.,    in        ^  g  y.^   330. 
Brown  v.  Powell  Coal  Co.,  L.  R.   10        »  18  How.  182. 
C.  P.  568. 

818 


CHAP.  XXXI.]  WITHOUT    RECEIVING    THE   GOODS.  [§  432. 

than  he  has  to  sign  bills  of  sale  of  the  ship.  He  has  an  appa- 
rent authority,  if  the  ship  be  a  general  one,  to  sign  bills  of 
lading  for  cargo  actually  shipped  and  he  has  also  authority  to 
sign  a  bill  of  sale  of  the  ship  when,  in  case  of  disaster,  his 
power  of  sale  arises.  But  the  authority  in  each  case  arises  out 
of,  and  depends  upon,  a  particular  state  of  facts.  It  is  not  an 
unlimited  authority  in  the  one  case  more  than  in  the  other 
and  his  act,  in  either  case,  does  not  bind  the  owner,  when  in 
favor  of  an  innocent  purchaser,  if  the  facts  upon  which  his 
power  depended  did  not  exist,  and  it  is  incumbent  upon  those 
who  are  about  to  change  their  condition  upon  the  faith  of  his 
authority,  to  ascertain  the  existence  of  all  the  facts  upon  which 
his  authority  depends."  Grant  v.  Norway  has  been  recognized 
as  the  law  in  our  Federal  Courts  by  a  steady  current  of  de- 
cisions since  its  adoption  in  The  Schooner  Freeman  ?;.  Bucking- 
ham.^ In  Pollard  v.  Vinton,^  the  court  quoted  approvingly  and 
at  leno;th  the  languao-e  used  in  The  Schooner  Freeman  v.  Buck- 
ingham,  and  said,  "  Authority  to  execute  and  deliver  bills  of 
lading  has  two  limitations ;  namely,  they  could  only  be  de- 
livered to  shippers  and  they  could  only  be  delivered  for  freight 
shipped.  Whatever  may  be  the  true  rule  which  character- 
izes actions  of  officers  of  a  corporation  who  are  placed  in 
control  as  the  governing  force  of  the  corporation,  which  actions 
are  at  once  a  fraud  on  the  corporation  and  the  parties  with  whom 
they  deal  and  how  far  courts  may  yet  decide  to  hold  the  corpo- 
rations liable  for  such  exercise  of  power  by  their  officers,  they 
can  have  no  controlling  influence  over  cases  like  the  present." 
The  case  was  that  of  the  issuance  of  a  false  bill  by  the  shipping 
agent  of  a  river  steamboat  owned  by  an  individual.  The  court 
continued  :  "  In  the  one  before  us  it  is  a  question  of  pure  agency 
and  depends  solely  on  the  power  confided  to  the  agent.  In  the 
other  case  the  officer  is  the  corporation  for  many  purposes."  The 
doctrine  of  Grant  v.  ISTorway,  thus  adopted  by  the  Supreme 
Court  of  the  United  States,  prevails  also  in  the  courts  of  several 
of  the  States.     It  has  been   approved   and  applied  in  Massa- 

^  Robinson  y.  Memphis  and  Charles-     Joseph  Grant,  1  Biss.  193;  Pollard  v. 
ton  E.  R.  Co.,  9  Fed.  Reporter,  129;     Vinton,  105  U.  S.  7. 
16  id.  57  ;  The  Lady  Franklin,  8  Wall.         2  io5  U.  S.  7. 
325  ;  The  Loon,  7  Blatch.  244  ;  The 

319 


R  434.]  BILLS   OF   LADING.  [CHAP.  XXXI. 

chusetts,^  in  Illinois,^  in  Ohio,^  in  Maryland,''  in  Louisiana*  and 
in  Missouri.® 

In  Sears  v.  Wingate^  it  was  held  that  the  princi[)le  of  the 
owner's  non-liability  would  debar  the  defendant  in  an  action 
by  several  owners  for  freight  actually  shipped,  from  recouping 
damages  for  the  loss  he  suffered  by  failure  to  deliver  the  goods 
specified  but  not  shipped,  although  the  master,  who  had  issued 
the  bill,  was  also  an  owner. 

§  433.  The  principle  of  Grant  v.  Norway  is  applicable  as  well 
to  the  case  of  a  false  bill  issued  by  a  vessel-owner's  regular  ship- 
ping agent,  as  to  that  of  such  a  bill  issued  by  a  master.  This 
rule  was  laid  down  in  Pollard  v.  Vinton,^  in  which  the  bill  was 
issued  by  the  shipping  agent  of  the  owners  of  a  steamboat  ply- 
ing regularly  between  two  points  on  the  Mississippi  River. 
The  authority  of  such  an  agent  cannot  be  greater  than  that  of 
the  master  of  a  vessel  transacting  business  by  his  ship  in  all 
the  ports  of  the  world.  The  same  rule  was  distinctly  stated  in 
Jessel  V.  Bath,^  in  which  the  bill  was  issued  by  the  ship's 
ao-ents.  Counsel  for  the  plaintiff  contended  that  the  cases  in 
which  a  ship's  owner  or  charterer  is  held  not  to  be  liable  for 
goods  not  put  aboard  were  not  applicable,  since  a  ship's  agent's 
functions  are  more  extended  than  those  of  a  master, — his  signa- 
ture being  with  the  authority  of  the  owner  and  in  lieu  of  the 
latter's  own.  The  court,  however,  held,  upon  the  authority  of 
what  appeared  from  the  case  stated,  that,  in  conformity  with  a 
practice  which  has  grown  up  since  the  introduction  of  steam 
navigation,  the  ship  agent  had  signed  instead  of  the  master  and 
that  no  difference  could  be  established  between  the  eificacy  of 
a  signature  by  the  agent  and  that  of  a  signature  by  the  master. 

§  434.  As  before  intimated,  the  doctrine  (enunciated  in 
Grant  v.  l^orway  and  followed  by  the  Federal  courts)  has  been 

1  Sears  v.  Wingate,  3  Allen,  103.         Ann.  Rep.  316  ;  Hunt  v.  Miss.  Cent. 

2  Stoul  V.    St.    L.    &   P.   R.    Co.,     R    Co.,  29  ib.  446. 

9  Bradwell,  48.  ®  Louisiana  Bank  v.  Leveille,  52  Mo. 

3  Dean  V.  King,  22  O.  118.  380;     AVilliams    v.    Wilmington    and 
*  B.  &  O.  R.  R.  Co.  I).  Wilkens,  44     Weldon  R.  Co.,  93  N.  C.  42. 

Md.  11.  '  3  Allen  (Mass.),  103. 

5  Fellows   V.   The   I'owell,   16  La.         »  i05  U.  S.  7. 


9  L.  R.  2  Ex.  267. 


120 


CHAP.  XXXI.]  WITHOUT    RECEIVING   THE   GOODS."  [§  434. 

rejected  in  some  jurisdictions  and  the  contrary  rule  established. 
The  latter  prevails  in  New  York,  Kansas  and  Nebraska,  and 
probably  in  Pennsylvania.^    The  ground  taken  by  the  courts  of 
those  States  is  that  of  equitable  estoppel,  the  underlying  princi- 
ple being  that  well-known  rule,  that  where  one  of  two  innocent 
parties  must  suffer  by  the  act  of  a  third,  the  loss  must  fall  upon 
that  one  of  them  who,  by  reposing  contidence  in,  and  granting 
authority  to,  the  latter,  has  furnished  him  with  the  means  of 
doing  the  injury.    A  leading  New  York  case  upon  this  point  is 
that  of  Armour  v.  Michigan  Central  Railroad  Co.^    In  that  case 
an  agent  of  the  defendant  company,  who  had  the  ordinary  autho- 
rity, issued  bills  to  one  Michaels,  upon  the  latter's  indorsement 
to  the  defendant  company  and  delivery  to  its  agent  of  a  ware- 
house receipt,  which  was  forged.    The  agent  knew  nothing  of  the 
forgery,  but  knew  that  the  goods  specified  had  not  been  deliv- 
ered to  the  company.    No  inquiry  was  made  as  to  the  genuine- 
ness of  the  warehouse  receipts,  although  the  agent  was  informed 
by  Michaels  at  the  time  of  the  delivery  of  the  bills  that  the 
latter  were  to  be  used  as  collateral  security  at  the  plaintiffs' 
bank.    Michaels  attached  the  bills  to  drafts  upon  the  plaintiffs, 
which,  upon  delivery,  the  latter  paid,  upon  the  faith  and  credit 
of  the  bills.     The  court  said  that  so  far  as  the  case  of  Grant  v. 
Norway  conflicted  with  the  doctrine  that  where  one  of  two 
innocent  persons  must  suffer  in  a  case  like  that  at  bar,  that 
person  must  bear  the  loss  who  reposed  the  confidence,  it  must 
be  deemed  to  be  overruled,  although  it  was  attempted  to  dis- 
tinguish that  case  from  the  one  under  consideration,  on  the 
ground  that  in   the  former  the  party  to  whom  the  bill  was 
originally  issued  and   who  assigned  it  to  the  plaintiff,  knew 
that  the  issue  was  without  authority.     The  case  at  bar  would 
have   been    essentially  different   had   the   plaintiff's   been    the 
assignees  of  holders,  who  knew  of  the  forgery,  by  which  the 
issue  was  induced.     Under  the  actual  circumstances,  the  case 
fell  within  the  rule  that  a  bona  fide  purchase  for  value  of  a 
non-negotiable  chose  in  action  from  one  upon  whom  the  owner 

'  See  Brooke  i'.  N.  Y.,    L.   E.    &         *  65  N,  Y.  Ill 
W.  R.  Co.,  16  W.  N.  C.  514;   S.  C. 
108  Pa.  529. 

21  321 


I  434.]  BILLS   OF   LADING.  [CHAP.  XXXI. 

has  by  assignment  conferred  the  apparent  absolute  ownersliip, 
confers  a  valid  title,  as  against  the  real  owner,  who  is  estopped 
from  asserting  a  title  in  hostility.*  The  representations  made 
to  the  plaintiffs  in  the  case  at  bar  were  made  to  them  directly. 
The  bills  were  not  issued  to  Michaels  and  by  liim  assigned  to 
the  plaintiffs.  The  goods  were  consigned  to  the  plaintiffs  them- 
selves and  the  bills  issued  with  the  expectation  that  they  would 
be  acted  upon  by  the  plaintiffs.  It  will  be  seen,  therefore,  that 
the  question  whether  the  doctrine  of  estoppel  is  to  be  applied 
in  favor  of  a  bona  fide  transferree  of  a  false  bill  was  not  decided. 
The  point  decided  by  the  case  was  that  a  mistaken  representa- 
tion made  in  a  bill  of  lading  by  an  agent  of  a  railroad  com- 
pany to  a  party  with  whom  the  company  stands  in  direct 
relations  and  who  is  himself  innocent,  inducing  a  well-founded 
belief  that  the  company  has  received  the  goods  specified,  pre- 
vents the  company's  denying  that  it  received  them,  though,  in 
point  of  fact,  it  did  not  receive  them. 

The  same  principle  has  been  applied  in  a  case,  which  was 
decided  in  Pennsylvania,  although  the  contractual  rights  of 
the  parties  arose  in  New  York  and  were,  therefore,  adjusted 
in  accordance  with  the  law  of  that  State.''  The  shipping  agent 
of  the  defendant  company,  with  the  knowledge  and  conniv- 
ance of  the  plaintiff's  consignor,  fraudulently  issued  to  the 
latter  a  bill  of  lading  for  a  carload  of  goods  which  had  nftt 
been  received  and  which  there  was  no  intention  to  deliver. 
The  consignor  drew  a  draft  upon  the  plaintiff  and  attached  to 
it  the  fraudulent  bill.  The  draft  was  duly  presented  and  was 
paid  by  the  plaintiff,  upon  the  faith  and  credit  of  the  bill.  The 
railroad  company  was  held  liable  and  the  case  ruled  by 
Armour  v.  The  Railroad  Company.  Although  the  court  was 
nominally  guided  by  the  lex  loci  contractus^  it  adopted  the 
latter  with  such  clearly  expressed  approval  as  to  render  the 
adoption  of  it  as  the  lexfori^  when  occasion  may  be  presented,  a 
matter  of  high  probability.     The  court  said,  indeed  :  "  We  are 

^  Moore  v.  Metropolitan  Bank,  55  See  also   26    Am.   L.    Reg.    (N.   S.) 

N.  Y.  41  ;    Griswold  v.  Haven,  25  N.  576  n. 

Y.   604  ;  McNeil  v.   Tenth  National  ^  Brooke  v.  N.  Y.,  L.  E.  &  W.  R. 

Bank,    46    ib.    325;    Batavia    Bank  Co.,  16  Weekly  Notes  of  Cases,  514; 

V.  N.  Y.,  etc.,  R.  Co.,    106  ib.    195.  S.  C.  108  Pa.  529. 

322 


CHAP.  XXXI.]  WITHOUT    RECEIVING    THE   GOODS.  [§  434. 

not  prepared  to  admit  there  is  any  material  difference  between 
the  laws  of  the  two  States  applicable  to  the  case."  In  Brooke  v. 
The  Railroad  Company,  as  in  the  New  York  case  by  which  it 
was  governed,  no  intimation  is  given  as  to  the  right  of  a  bona 
fide  transferree  of  such  a  bill  for  value  to  invoke  the  rule  of 
estoppel  against  the  principal.  In  the  former  case  the  plaintiff 
maintained  the  same  directness  of  relation  to  the  raih-oad  com- 
pany as  the  plaintiff  in  the  latter.  So  in  a  recent  case  in 
Kansas  the  duly  authorized  agent  of  a  railroad  company,  at 
the  instance  of  a  shipper,  issued,  in  the  name  of  the  corpora- 
tion, two  original  bills  of  lading,  each  of  the  same  terms,  tenor, 
and  effect,  for  the  same  consignment  of  goods  and  each  of 
them  was  transferred  by  the  shipper  to  different  parties,  who 
respectiv.ely  accepted  them  in  good  faith  and  for  value.  It 
was  the  custom  of  the  railroad  company,  known  to  the  trans- 
ferrees,  to  issue  but  one  bill  of  lading  and  the  agent  had  no 
authority  to  issue  more.  The  holder  of  one  of  the  bills  having 
obtained  the  goods  from  the  company  upon  the  presentation  o'f 
his  bill  and  with  no  knowledge  upon  the  part  of  the  company 
that  another  bill  was  outstanding,  the  holders  of  the  latter,  upon 
the  company's  refusal  to  make  good  their  loss,  brought  suit 
against  it— the  shipper  being  insolvent  and  having  absconded. 
The  holder  was  allowed  to  recover  the  amount  of  his  ad- 
vances.^ 

This  case  is  an  important  one,  as  embodying  a  decision 
of  tlie  point  which  is  touched  upon  only  by  dicta  in  Armour 
V.  The  Railroad  Company  and  to  which  those  dicta  are  ad- 
verse. Although  it  does  not  appear  whether  the  distinction 
recognized  by  the  latter  was  raised  in  argument  in  this  case 
and  although  it  was  not  specially  adverted  to  by  the  court, 
the  decision  must  be  considered  as  full  to  the  point  that  not 
only  a  party  upon  whom  the  agent  of  such  a  corporation 
directly  perpetrates  such  a  fraud,  but  one  who  is  simply  the 
innocent  buyer,  in  the  regular  course  of  commercial  transac- 
tions, of  such  a  false  and  fraudulent  non-negotiable  chose  in 
action,  IS  entitled  to  protection  against  the  corporation's  negli- 
gence in   employing   a   dishonest   agent.     The   court,  indeed, 

^  Wichita  Bank  v.  A.,  T.  &  S.  R.  Co.,  20  Kan.  519. 

323 


§  435.] 


BILLS    OF    LADING.  [CIIAP.  XXXI. 


expressly  assented  to  the  proposition,  that  a  bill  of  lading  is 
not  a  negotiable  instrument,  but  held  that  the  defendant's 
liability  did  not  depend  upon  the  negotiable  character  of  the 
bill.  "The  principle  of  estoppel  does  and  ought  in  such  cases 
to  apply."  It  would  be  difficult  to  distinguish  the  position  of 
the  plaintiff  in  this  case  from  that  of  the  hypothetical  plaintiff 
whose  right  of  recovery  the  court  seemed  to  so  strongly  doubt 
in  Armour  v.  The  Railroad  Comiiany. 

In  Nebraska  a  later  decision  follows  the  rule  thus  established 
in  Kansas  and  goes  to  the  same  length  in  holding  a  general 
purchaser  of  such  a  security  entitled  to  recovery.^ 

§  435.  In  Maryland  it  is  provided  by  statute^  that  all  bills  of 
lading  issued  by  any  person  or  corporation,  or  by  any  agent  or 
officer  of  any  person  or  corporation  authorized  to  issue  the  same 
on  his  or  its  behalf,  or  authorized  or  permitted  by  such  person 
or  corporation  to  issue  like  instruments  on  his  or  its  behalf, 
shall  be  conclusive  evidence  in  the  hands  of  auy  bona fde  holder 
for  value,  who  shall  have  become  such,  without  actual  notice  to 
the  contrary,  that  all  of  the  goods  described  therein  had  been 
actually  received  by,  and  were  actually  in  the  possession  and 
custody  of  such  person  or  corporation  at  the  time  of  issuing 
the  bill,  according  to  the  tenor  thereof,  and  for  the  purpose  and 
to  the  effect  therein  stipulated,  notwithstanding  that  the  fact 
may  have  been  otherwise  and  that  such  agent  or  officer  may 
have  had  no  authority  to  issue  any  such  instrument  except  for 
goods  actually  received  and  in  possession  at  the  time  of  such 
issue. 

In  Pennsylvania  it  is  provided  by  statute^  that  no  warehouse- 
man, wharfinger  "  or  other  person"  shall  issue  any  receipt  "  or 
other  voucher"  for  goods  to  persons  purporting  to  be  the  owners 
of  such  goods,  unless  the  latter  have  been  actually  received 
"  into  store  or  upon  the  premises  of"  such  warehouseman  or 
other  person  and  shall  be  on  store  or  on  the  premises  and  under 
his  control  at  the  time  of  issuing  such  receipt.  The  5th  section 
of  the  Act  prescribes  a  penalty  of  fine  or  imprisonment  for  the 

1  Sioux  City  and  Pacific  Ry.  Co.  v.  «  i876,  C.  2,  S..  1  ;  Rev.  Code,  1878, 
First  Nat.  Bank  of  Fremont,  10  Neb.     p.  298. 

556.  ^  Act  of  Sept.  24,  1866,  P.  L.  1363. 

Purdon's  Dig.  145. 

324 


CHAP,  XXXI.]  WITHOUT    RECEIVING    THE   GOODS.  [§  435. 

violation  of  the  Act,  and  provides  for  the  recovery  of  damages 
by  the  party  aggrieved  by  its  violation,  whether  the  person 
violating  it  shall  have  been  convicted  of  fraud  under  the  Act 
or  not.  Whether  or  not  this  prohibition  of  the  Act  applies  to 
carriers  as  well  as  to  warehousemen,  etc.,  has  not  as  yet  been 
decided. 

A  similar  prohibition  has  been  enacted  in  MarylatuL'  The 
statute  of  that  State  provides  that  no  person  or  corporation,  or 
agent,  or  officer  of  any  person  or  corporation  in  that  State  shall 
issue  any  bill  of  lading,  receipt,  acknowledgment,  or  voucher 
whatsoever,  for  goods,  chattels  or  commodities  of  any  kind,  to 
be  transported  on  land  or  water,  or  on  both,  until  and  unless 
the  whole  of  the  said  goods,  chattels  and  commodities  shall 
have  been  actually  received  to  be  transported  by  such  person  or 
corporation,  at  the  time  when  such  instrument  shall  be  issued. 
The  violation  of  this  provision  is  made  a  misdemeanor  punish- 
able by  fine. 

The  laufj-uao-e  of  the  Missouri  statute^  on  the  same  subject  is: 
"No  master,  owner  or  agent  of  any  boat  or  vessel  of  any  descrip- 
tion, forwarder  or  officer,  or  agent  of  any  railroad,  transfer  or 
transportation  company,  or  other  person,  shall  sign  or  give  any 
bill  of  lading,  receipt  or  other  voucher  or  document,  for  any 
merchandise  or  property,  by  which  it  shall  appear  that  such 
merchandise  or  property  has  been  shipped  on  board  of  any  l^oat, 
vessel,  railroad  car,  or  other  vehicle,  unless  the  same  shall  have 
been  actually  shipped  and  put  on  board,  and  shall  be  at  the 
time  actually  on  board  or  delivered  to  such  boat,  vessel,  car  or 
other  vehicle,  to  be  carried  and  conveyed  as  expressed  in  such 
bill  of  lading,  receijit  or  other  voucher  or  document."  Fine  or 
imprisonment  is  imposed  as  the  penalty  for  a  violation  of  this 
prohibition ;  and  a  provision  similar  to  that  of  Pennsylvania  is 
made  with  regard  to  the  recovery  of  damages. 

The  Wisconsin  statute'  provides  that  "any  warehouseman, 
wharfinger,  master  of  a  vessel  or  boat,  or  any  officer,  agent  or 
clerk  of  any  railroad,  express  or  transportation  com[)any,  who 
shall  issue  any  receipt,  bill  of  lading,  voucher  or  other  docu- 
ment to  any  person  purporting  to  be  the  owner  thereof,  or  as 

»  187G,  C.  262,  S.  1;  Rev.  Code,    ^  r_  g.  1379^  g.  557,  p.  33. 
1878,  p.  299.  ^  lb.  1878.  S.  4424. 

325 


§  436.]  BILLS    OF   LADING.  [CHAP.  XXXI. 

security  for  any  loan  or  indebtedness,  for  any  goods,  wares, 
merchandise,  lumber,  timber,  grain,  flour  or  other  property, 
produce  or  commodity,  unless  at  the  time  of  issuing  the  same 
such  property  shall  have  been  actually  received  or  shipped, 
according  to  the  terms  and   meaning  of  such  receipt,  bill  of 

ladino;,  voucher  or  other  document  so  issued shall  be 

punished  by  imprisonment,"  etc. 

In  New  York  it  is  provided^  that  "  no  master,  owner  or  agent 
of  any  vessel  or  boat  of  any  description,  or  oflicer  or  agent  of 
any  railroad  company,  or  other  person,  shall  sign  or  give  any 
bill  of  lading,  receipt  or  other  voucher  or  document,  for  any 
merchandise  or  [)roperty,  by  which  it  shall  appear  that  such 
merchandise  or  [troperty  has  been  shipped  on  board  any  vessel, 
boat  or  railroad  car,  unless  the  same  shall  have  been  actually 
shipped  and  put  on  board,  and  shall  be  at  the  time  actually  on 
board  or  delivered  to  such  vessel,  boat  or  car  to  be  carried  and 
conveyed  as  exi)ressed  in  such  bill  of  lading,  receipt  or  other 
voucher  or  document." 

§  436.  It  is,  however,  an  important  modification  of  the  principle 
under  discussion  that  a  bill  of  lading,  issued  by  either  a  ship- 
master or  an  inland  carrier,  may  give  a  valid  title  to  goods  not 
in  the  possession  of  the  carrier  at  the  time  of  such  issue,  but 
subsequently  received  for  transportation  in  accordance  with 
the  contemplation  of  the  parties  as  expressed  in  the  bill.^ 
Where,  through  inadvertence  or  otherwise,  the  bill  is  signed 
before  the  goods  are  put  on  board  or  received  for  shipment  by 
rail  or  otherwise,  upon  the  faith  and  assurance  that  they  are 
about  to  be  so  delivered ;  if  they  are  subsequently  placed  in 
the  carrier's  hands  as  and  for  the  goods  described  in  the  bill, 
the  latter  will  operate  against  the  carrier  by  way  of  relation 
and  estoppel  and  a  consignee  who  receives  it  and  accepts  drafts 
on  the  faith  of  the  consigrmient  has  as  valid  and  effectual  a 
title  to  the  goods  as  could  be  obtained  by  an  actual  delivery  of 
the  goods  themselves.  Mr.  Justice  Strong,  delivering  the  opinion 

1  R.  S.,  vol.  iii.,  7th  ed.,  p.  2259;  The  Idaho,  93  U.  S.  575;  Halliday 
L.  1858,  C.  326.  V.  Hamilton,  11  Wall.  560  ;  The  Far- 
See  Addenda  for  full  text  of  these  well,   8  Biss.  61  ;   Robinson  v.   Mem- 
acts,  phis,  etc.,  R.  Co.,  16  Fed.  Rep.  57. 

2  Rowley  v.  Biorelow,  12  Pick.  307  ; 

326 


CHAP.  XXXI.]  WITHOUT    RECEIVING    THE   GOODS.  [§  437. 

of  the  Supreme  Court  of  the  United  States,  in  the  case  of  The 
Idaho,*  said :  "  We  do  not  say  that  a  title  to  personal  property 
may  not  be  created  between  the  issue  of  a  bill  of  lading  there- 
for and  its  delivery  to  the  ship,  which  will  prevail  over  the 
master's  bill,  but,  in  the  absence  of  any  such  intervening  right, 
a  bill  of  lading  does  cover  goods  subsequently  delivered  and 
received  to  fill  it,  and  will  represent  the  ownership  of  the 
goods."  Property  may  be  delivered  on  board  a  vessel  so  as  to 
be  bound,  by  a  previously  signed  bill  of  lading  and  to  become 
the  subject  on  which  it  shall  operate,  at  any  time  while  the 
vessel  is  taking  in  her  cargo  for  the  voyage  contemplated,  as 
described  in  the  bill,  and  before  she  sails  upon  it.'*  This  rule 
is  probably  unexceptionable,  as  stated  in  the  terms  used,  in  its 
application  to  ocean  transportation,  but  in  the  case  of  Ilalli- 
day  V.  Hamilton^  a  still  greater  latitude  was  allowed  in  the 
time  and  mode  of  delivery  to  satisfy  the  terms  of  the  pre- 
viously issued  bill  and  give  a  valid  title  thereunder.  In  that 
case  the  shi[)per,  a  resident  of  St.  Louis,  received  at  that  place 
from  the  agent  of  a  steamer  about  to  go  down  the  Mississippi 
River  to  ISqw  Orleans,  a  bill  of  lading  for  merchandise  lying  at 
a  landing  on  the  river  more  than  a  hundred  miles  below  the 
point  of  dei)artMre,  consigned  to  a  party  in  New  Orleans.  The 
steamer  stopped  at  the  designated  point  and  took  the  goods 
aboard.  This  was  held  to  constitute  a  valid  transfer  of  the 
property  to  the  consignees,  as  against  an  unpaid  vendor  of  the 
goods,  who  issued  an  attachment  subsequently  to  such  delivery. 
§  437.  This  retroactive  etfect  of  a  bill  of  lading  is  not  pre- 
vented by  the  existence  of  a  statute  which  prohibits  the  issu- 
ance of  a  bill  before  the  receipt  of  the  goods.  Such  a  statute  does 
not  forbid  the  curing  of  an  illegal  bill  by  supplying  goods,  the 
receipt  of  which  has  been  previously  acknowledged.  If  held 
to  mtike  a  delivery  of  goods  to  fill  a  fraudulent  bill  of  lading 
inoperative  for  that  purpose,  it  would  be  rendered  a  means  of 
furthering  the  fraud  it  was  designed  to  prevent.'* 

'   93  U.  S.  575.  3  11  Wall.  560. 

*  Rowley  v.  Bigelow,  12  Pick.  307.         ^  The  Idaho,  93  U.  S.  575. 

327 


«  438.J  BILLS   OF   LADING.  [CHAP.  XXXIl. 


CHAPTER  XXXII. 

THE  NEGOTIABILITY  OF  THE  BILL  OF  LADING. 


The  bill  is  not   "negotiable"   in   the 

ordinary  sense  of  that  term,  §  438. 
The  nature  of  the  interest  or  title  of 

■which  the  bill  is  a  muniment,  §§  439, 

440,  441,  442. 
Statutes  relating  to  the  negotiability  of 

bills  of  lading,  §§  443,  444,  445,  446, 

447,  448,  449,  450,  451. 


The   construction  of   statutes  relating 

to  the  negotiability  of  the  bill,  §§  452, 

453,  454. 
Rights   of  holders   of   different  parts 

of  a  bill  issued  in  sets,  §§  455,  456, 

457,  458,  459. 


§  438.  It  may  be  readily  gathered  from  the  principles  al- 
ready discussed  that  the  bill  of  lading  cannot  be  regarded 
(unless  by  virtue  of  statutory  enactment)  as  an  absolute  mu- 
niment of  title,  I.  e.,  a  document  that  vests  in  its  holder 
a  right  of  possession  which  cannot  be  assailed  or  defeated. 
This  is  true  in  many  instances  although  the  holder  obtained  the 
bill  in  good  faith  and  for  a  valuable  consideration.  The 
negotiability  of  the  bill  has  been  the  subject  of  numberless 
discussions  involving  the  rights  of  the  holder ;  but  the  word 
"negotiable,"  except  where  the  law-making  power  has  abro- 
gated the  rules  of  the  common  law  and  mercantile  usage,  is 
entirely  out  of  place  in  such  controversies  unless  stripped  of 
its  ordinary  significance.  A  large  number  of  dicta  have  been 
uttered  by  eminent  authorities  in  assertion  of  the  negotiability 
of  the  bill  of  lading,  but  no  case  can  be  found,  unless  arising  under 
a  special  statute,  in  which  a  bill  of  lading  has  been  treated  us  an 
instrument  which  is  negotiable  in  the  same  sense  as  bills  of  ex- 
change and  promissory  notes  are  negotiable.  All  broad  asser- 
tions of  the  negotiability  of  the  bill  of  lading,  when  examined 
in  the  light  of  their  context  and  of  their  actual  application  to  the 
very  cases  in  which  they  were  unguardedly  made  by  the  court, 
will  be  found  equivalent  merely  to  a  statement  that  the  bill  is 
328 


CHAP.  XXXII.]      NEGOTIABILITY    OF   BILL    OF   LADING.  [§  440. 

transferrable  by  indorsement  and  delivery  and  that  such  in- 
dorsement and  delivery  transfers  to  the  indorsee  or  holder  such 
rights  io,  oi-  property  in  the  goods  as  it  was  the  intention  of  the  par- 
ties, gathered  from  all  the  circumstances,  to  pass.  This,  except,  as 
before  stated,  in  those  cases  where  a  larger  effect  has  been  given 
to  such  transfers  by  statute,  is  the  broadest  statement  of  the 
"negotiability"  of  the  bilf  of  lading  which  is  warranted  by  the 
cases.  A  review  of  particular  authorities  to  establish  the  nega- 
tive proposition  that  by  the  commercial  law  these  instruments 
are  not  negotiable  in  the  ordinary  sense  of  that  term,  is  neither 
feasible  nor  necessary.  Its  correctness  is  sufliciently  manifested 
as  a  necessary  corollary  of  the  discussion  of  particular  questions 
arising  out  of  the  issuance  or  transfer  of  the  bill.  To  hold  that 
the  bill  has  negotiability  of  the  broad  character  sometimes 
claimed  for  it  is  to  hold  that  there  can  be  no  such  thing  as  an 
ineffectual  indorsement  of  it,  whereas,  as  the  succeeding  discus- 
"sion  shows,  no  title  is  conveyed  by  the  indorsement  and  delivery 
of  a  bill  of  lading,  even  to  a  bona  fide  purchaser  for  value,  where 
the  indorser  had  none. 

§  439.  The  discussion  of  the  negotiability  of  the  bill  of  lading 
has  involved,  not  only  the  question  as  to  the  superiorit}^  of 
the  holder's  title  to  those  of  other  claimants  of  the  goods,  but 
also  the  question  as  to  the  extent  and  character  of  his  owner- 
ship or  interest.  The  answer  to  this  question  is  found  in  the 
statement  of  the  effect  of  transferring  a  bill,  found  in  the  pre- 
cedincr  section.  The  character  of  the  transferree's  interest  in 
the  goods  represented  by  the  bill  of  lading  is  that  intended  by 
the  parties  or  implied  by  law^  from  the  particular  circumstances 
of  each  transaction.  There  is  nothing  in  the  possession  of  the 
bill  which  can  give  to  its  holder  greater  or  higher  rights  over 
the  property  than  were  intended  in  the  express  or  implied  con- 
tract under  which  it  was  transferred.  Even  when  there  are  no 
conflicting  claims  to  the  property,  the  mere  transfer  of  the  bill 
of  lading  does  not  pass  the  complete  legal  ownership  so  as  to 
impose  upon  the  transferree  all  the  liabilities  with  respect  to  the 
property  which  would  attach  to  the  ownership  of  an  ordinary 
purchaser,  or  to  invest  him  with  all  the  latter's  rights. 

§  440.  The  language  of  opinions  from  the  time  of  that  deliv- 

329 


§  441.]     .  BILLS    OF   LADING.  [CHAP.  XXXII. 

ered  in  Lickbarrow  v.  Mason^  to  the  present  day,  as  well  as  much 
of  the  phraseology  in  contemporary  text-books,  has  been  of  the 
broadest  character  in  stating  the  effect  of  the  transfer  of  the  bill 
of  lading  to  be  the  passing  of  "  the  property  in  the  goods,"  "  the 
complete  legal  ownership,"  "  the  absolute  legal  title,"  etc.  Here, 
too,  a  careful  examination  of  the  cases  themselves  will  disclose 
the  fact  that  the  principles  thus  sWeepingly  enunciated  were 
laid  down  with  a  particular  question  or  set  of  questions  in  view 
and  are  not  borne  out  by  the  decisions  themselves  as  of  universal 
application.  As  between  an  unpaid  vendor  and  the  vendee's 
hova  Jide  indorsee,  or  as  between  a  bona  fide  indorsee  and  other 
claimants,  the  transfer  of  the  bill  undoubtedly  passes  property 
in  the  goods  as  effectually  as  would  its  manual  delivery,  but 
the  transferree  has  only  such  property  in  the  goods  as  it  is 
necessary  to  confer  upon  him  in  order  to  effectuate  the  purpose 
of  the  transfer.  An  agent  to  whom  the  bill  is  indorsed  to  enable 
him  to  effect  a  stoppage  in  transitu^  or  a  banker  to  whom  six 
thousand  dollars  worth  of  goods  may  be  pledged  to  secure  a 
loan  of  five  thousand  cannot  be  considered  as  vested  with  such 
"  complete  legal  ownership"  as  they  would  have  if  their  contract 
with  the  transferree  were  one  of  purchase  and  sale.  So,  where 
the  extent  of  the  trausferree's  property  in  the  goods  becomes  a 
question  involving  the  extent  of  his  liabilities  with  respect  to 
the  goods  instead  of  his  rights,  the  proposition  that  the  transfer 
of  the  bill  passes  "  the  absolute  legal  ownership"  is  found  to  be 
inaccurate. 

§  441.  This  very  clearly  appears  from  the  cases  arising  upon 
the  English  Bills  of  Lading  Act,  18  and  19  Vict.  C.  Ill,  or, 
indeed,  from  the  cases  arising  previously  in  which  it  was  held 
that  the  transfer  of  a  bill  of  lading  did  not  transfer  the  contract 
so  that  upon  a  refusal  to  deliver  the  goods  the  transferree 
might  sue  for  a  conversion,  but  could  bring  no  action  upon  the 
contract  contained  in  the  bill  and,  on  the  other  hand,  assumed 
none  of  the  liabilities  created  by  the  contract,  as  for  freight.^ 
The  statute,  after  reciting  the  pre-existing  law  and  providing 

^  5  T.  R.  683.  277;   Sanders  v.  Vanzellcr,  4  Q.   B. 

*  Howard  v.  Shepherd,  9  C.  B.  297  ;  260  ;   Tindall  v.  Taylor,   4   El.  &  Bl. 

Thompson  v.  Dowing,    14  M.  &  W.  219. 
403  ;   Sargent  v.  Morris,  3  B.  &  Aid. 

330 


CHAP.  XXXII.]      NEGOTIABILITY   OF   BILL    OF   LADING.  [§  442. 

that  every  indorsee  of  the  bill  of  lading  "  to  whom  the  property 
in  the  goods  therein  mentioned  shall  pass,  upon  or  by  reason  of 
such  indorsement,"  shall  have  vested  in  him  the  right  of  suit, 
etc.,  further  provides  that  he  "  shall  be  subject  to  the  same  lia- 
bilities in  respect  of  such  goods  as  if  the  contract  contained  in 
the  bill  of  lading  had  been  made  with  himself."  The  statute  ^ 
itself,  it  is  to  be  observed,  in  specifying  what  indorsees  are  to 
be  included  within  its  purview^  gives  implied  recognition  to 
the  fact  that  a  transfer  of  the  bill  of  lading  does  not  of  itself 
invariably  transfer  the  complete  legal  ownership  of  the  goods, 
since  it  limits  its  application  to  indorsees  "  to  whom  the  prop- 
erty shall  pass,"  and  the  same  fact  has  been  distinctly  recog- 
nized by  the  courts  in  interpreting  the  statute. 

§  442.  The  latest  important  decision  upon  this  statute,  and  as 
well  the  latest  important  English  discussion  of  the  effect  of  the 
transfer  as  passing  property  in  the  goods,  independently  of  the 
statute,  is  that  contained  in  Sewell  v.  Burdick,i  decided  in  the 
House  of  Lords  in  1884.  In  that  case  goods  were  shipped  under 
bills  of  lading  making  them  deliverable  to  the  shipper  or  assigns. 
After  the  goods  had  arrived  and  had  been  warehoused,  the  ship- 
per indorsed  the  bills  of  lading  in  blank  and  deposited  them  with 
Sewell  as  security  for  a  loan.  Sewell  never  took  possession  of 
or  dealt  with  the  goods.  The  ship-owners  brought  an  action 
against  Sewell  for  freight.  It  was  held  that  the  "  property"  in 
the  goods  did  not  pass  to  Sewell  within  the  meaning  of  the 
Bills  of  Lading  Act,  so  as  to  make  him  liable  for  the  freight. 
The  previous  interpretations  of  the  statute^  were  reviewed  and 
it  was  shown  to  be  by  them  established  that  the  transferree  ob- 
tains the  complete  legal  ownership  of  the  goods,  which  under 
the  act  gives  him  the  rights  and  imposes  upon  him  the  liabili- 
ties of  an  absolute  proprietor,  not  by  virtue  of  the  indorsement 
or  delivery  of  the  bill,  but  by  virtue  of  an  election,  which  he 
might  or  might  not  make  "  to  complete  his  potential  and  in- 
choate title  by  taking  possession  of  the  goods,  and  so  placing 
himself  toward  the  ship-owner  in  the  position  of  proprietor." 
The  "  property"  passed  to  the  transferree  was  held  to  be  spe- 

i  L.  R.  10  H.  L.  74.  S.)  847;    The  Figglia  Maggiore,  L. 

2  Fox    V.   Nott,    6    H.    &   N.   637;     R.  2  Admiralty  &  Ecclesiastical,  106 ; 
Smurthwalte  u.  Wilkins,  11  C.  B.  (N.     The  Freedom,  L.  R.  3  P.  C.  594. 

331 


^  442.]  BILLS   OF   LADING.  [CHAP.  XXXII. 

cial,  not  general,  "  the  shipper  retaining  (whether  at  law  or  in 
equity)  the  real  and  substantial  property  in  the  goods,  subject 
to  the  security.  The  case  made  on  the  statement  of  claim," 
said  Lord  Blackbukn,  "was  that  'the'  property  had  passed 
upon  or  by  reason  of  the  indorsement  to  the  defendants. 
....  I  think  that  all  the  judges  below  w^ere  of  opinion  that 
if  the  right  reserved  was  the  general  right  to  the  property  at 
law,  what  was  transferred  being  only  a  pledge  (conveying,  no 
doubt,  a  right  of  property  and  an  immediate  right  of  possession, 
so  that  the  transferree  would  be  entitled  to  bring  an  action  at 
law  against  any  one  who  wrongfully  interfered  with  his  right), 
though  'rt'  property,  and  'a'  property  against  the  indorser, 
passed  '  upon  and  by  reason  of  the  indorsement,'  yet  '  the'  prop- 
erty did  not  pass.  And  I  agree  with  them."  His  Lordship 
then  proceeded  to  discuss  the  opinions  expressed  in  the  leading 
cases  of  Glynn  v.  East  and  West  India  Dock  Company ,i  and  in 
Lickbarrow  v.  Mason,^  and  observed  that  neither  the  statement 
of  the  custom  of  merchants  in  ihe  special  verdict  in  the  latter 
case,  nor  the  opinion  of  Mr.  Justice  Buller,  "justifies  the  infer- 
ence that  the  indorsement  of  a  bill  of  lading  for  a  valuable  con- 
sideration must  pass  the  entire  legal  property,  whatever  was  the 
intention  of  the  parties,"  and  quoted  the  opinion  of  Lord  El- 
lenborough  in  Newson  v.  Thornton,^  that  "a  bill  of  lading, 
indeed,  shall  pass  the  property,  upon  a  bona  fide  indorsement 
and  delivery,  where  it  is  intended  so  to  operate^  in  the  same  man- 
ner as  a  direct  delivery  of  the  goods  themselves  would  do,  if  so 
intended.  But  it  cannot  operate  further."  "In  Glynn  v.  East 
and  West  India  Dock  Company,"  said  Lord  Blackburn, 
"  Brett,  L.  J.,  says  (speaking  of  an  opinion  of  Willes,  J.) :  '  To 
say  that  an  indorsement  of  a  bill  of  lading  for  an  advance  is 
only  a  pledge,  seems  to  me  to  be  inconsistent  with  what  has 
always  been  considered  to  be  the  result  of  Lickbarrow  v.  Ma- 
son, namely,  that  such  an  indorsement  passes  the  legal  property,' 
by  which  I  understand  him  to  mean  the  whole  legal  property. 
But  neitlier  in  that  case  nor  in  the  one  now  at  bar  does  he  refer 
to  any  authority  to  that  effect.     Expressions  used  by  judges 

1  6  Q.  B.  D.  475.  3  6  East,  40. 

2  5  T.  K.  683. 

332 


CHAP.  XXXII.]      NEGOTIABILITY    OF    BILL   OF   LADING.  [§  443. 

have  been  cited,  which,  I  think,  only  show  that  they  did  not 
carefully  consider  their  language,  where  no  question  ot  the 
kind  before  us  was  under  discussion.  And  as  far  as  I  know, 
there  is  no  decision  subsequent  to  Lickbarrow  v.  Mason  which 
proceeds  on  such  a  ground."  i     •   ■.    i 

Lord  Bramwell  said:  "It  is  found  as  a  fact,  and  rightly 
found,  as  is  admitted,  that  all  that  was  iiitemled  in  the  transaction 
was  a  pledge.  This  would  give  the  appellants  a  property,  but, 
as  put  by  BowEN,  L.  J.,  not  the  property.  The  Master  of  the 
Rolls  thinks  that  Lickbarrow  v.  Mason,  or  rather  the  opinion 
of  BuLLER,  J.,  shows  that  when  a  bill  of  lading  is  indorsed  to 
give  any  title  to  the  transferree,  the  entire  property  is  passed. 
.  .  I  think  that  authority  and  reason  are  against  it.  The 
cases *do  not,  in  my  opinion,  justify  the  contention.  As  to  the 
reason  and  principle  which  should  govern,  I  ask,  why  should  ' 
the  transfer  of  the  bill  of  lading  have  a  greater  eftect,  contrary 
to  the  parties'  intention,  than  the  handing  over  of  the  chattels 
themselves?  ....  The  truth  is,  the  property  does  not  pass  by 
the  indorsement,  but  by  the  contract  in  pursuance  of  which  the 
indorsement  is  made." 

This  decision  of  the  highest  court  in  the  greatest  commer- 
cial jurisdiction  in  the  world  would  seem  to  leave  no  doubt 
that  a  bill  of  lading  is  a  muniment  of  only  such  a  title  as  it 
was  the  express  or  implied  intention  of  the  parties  to  convey 

and  receive. 

§  443.  In  many  of  the  States  statutes  have  been  enacted 
giving  to  bills  of  lading  a  negotiable  or  quasi-negotiable  char- 
acter which  they  do  not  possess  at  common  law.  They  are  set 
forth  in  brief  in  the  following  paragraphs,  the  full  text  appear- 
ing in  the  Addenda  to  this  volume  :— 

^rytansas.i— Warehousemen,  wharfingers,  and  transportation 
companies  are  forbidden  to  issue  receipts  for  goods  until  the 
goods  are  under  their  control.  If  duplicate  receipts  are  given 
the  word  "duplicate"  must  be  written  across  the  lace.  Such 
receipts  and  all  bills  of  lading,  transportation  receipts,  and  con- 
tracts of  affreightment  are  made  negotiable.  Any  violation  ot 
the  act  is  declared  a  criminal  offence. 

1   Acts  of  1887,  No.  60,  p.  84. 

333 


§  446.]  BILLS    OF   LADING.  [CIIAP.  XXXII. 

g  444,  California.} — All  the  title  to  the  freight  which  the 
first  holder  of  a  bill  of  lading  had  when  he  received  it  passes 
to  every  subsequent  indorsee  thereof  in  good  faith  and  for 
value,  in  the  ordinary  course  of  business,  with  like  eti'ect  and 
in  like  manner  as  in  the  case  of  a  bill  of  exchange. 

When  a  bill  of  lading  is  made  to  "  bearer,"  or  in  equivalent 
terms,  a  simple  transfer  thereof,  by  delivery,  convej's  the  same 
title  as  an  indorsement. 

§  445.  Dakota} — All  the  title  to  the  freight  which  the  first 
holder  of  a  bill  of  lading  had  when  he  received-  it  passes  to  every 
subsequent  indorsee  thereof,  in  good  faith  and  for  value,  in  the 
ordinary  course  of  business,  with  like  efl:ect,  and  in  like  man- 
ner as  in  the  case  of  a  bill  of  exchange.  When  a  bill  of  lading 
is  made  to  bearer,  or  in  equivalent  terms,  a  simple  transfer 
thereof  by  delivery  convej's  the  same  title  as  an  indorsement. 

§  446.  Maryland.^ — All  bills  of  lading  and  all  receipts,  vouchers 
or  acknowledgments  whatsoever  in  writing,  in  the  nature  or 
stead  of  bills  of  lading  for  goods,  chattels,  or  commodities  of 
any  kind,  to  be  transported  on  land  or  water,  or  on  both,  which 
shall  be  executed  in  this  State,  ....  shall  be  and  they  are 
hereby  constituted  and  declared  to  be  negotiable  instruments 
and  securities,  unless  it  be  provided  in  express  terms  to  the 
contrary  on  the  face  thereof,  in  the  same  sense  as  bills  of  ex- 
change and  promissory  notes,  and  full  and  complete  title  to  the 
property  in  said  instruments  mentioned  or  described,  and  all 
right  and  remedies  incident  to  such  title,  or  arising  under  or 
derivable  from  the  said  instruments,  shall  inure  to  and  be 
vested  in  each  and  every  bona  fide  holder  thereof  for  value, 
altogether  unaffected  by  any  rights  or  equities  whatsoever  of  or 
between  the  original  or  any  other  prior  holders  of  or  parties  to 
the  same,  of  which  such  bona  fide  holder  for  value  shall  not 
have  had  actual  notice  at  the  time  he  became  such. 

Every  instrument  of  those  mentioned  and  described  in  the 
preceding  section,  which  shall  be  issued  by  any  person  or  cor- 
poration, or  by  any  agent  or  oflicer  of  any  person  or  corpora- 

1  Civ.  Code,  §§  2127,  2128.    ■  ^  1876,   C.  262,    §  1;    Rev.   Code, 

^  Compiled  Laws  of  Dakota,  1887,     1878,  p.  298,  etc. 
§§  3855,  3857. 

334 


CHAP.  XXXTI.]      NEGOTIABILITY    OF    BILL   OF   LADING.  [§  448. 

tiori  authorized  to  issue  the  same  on  his  or  its  behalf,  or  au- 
thorized or  permitted  by  such  person  or  corporation  to  issue 
like  instruments  on  his  or  its  behalf  for  goods,  chattels,  or  com- 
modities actually  received  for  transportation  or  held  on  storage, 
as  the  case  may  be,  shall  be  conclusive  evidence  iu  the  hands  of 
any  bona  fide  holder  for  value  of  such  instrument,  who  shall 
have  become  such  without  actual  notice  to  the  contrary,  that 
all  of  the  goods,  chattels,  and  commodities  in  said  instrument 
mentioned  or  described  had  been  actually  received  by,  and 
w^ere  actually  in  the  possession  and  custody  of,  such  person  or 
corporation  at  the  time  of  issuing  the  said  instrument  accord- 
ing to  the  tenor  thereof,  and  for  the  purposes  and  to  the  etfects 
therein  stipulated  or  provided,  notwithstanding  that  the  fact 
may  be  otherwise,  and  that  such  agent  or  officer  may  have  had 
no  authority  to  issue  any  such  instrument  on  behalf  of  his  said 
principal,  except  for  goods,  chattels,  or  commodities  actually 
received  and  in  possession  at  the  time  of  such  issue.^  Any  in- 
strument declared  negotiable  by  this  article  shall  be  held  and 
taken  to  have  been  issued,  within  the  meaning  of  this  article, 
when  it  shall  have  been  signed  and  shall  have  been  delivered 
out  of  the  custody  of  the  person  or  corporation  to  be  charged 
or  bound  by  the  same,  or  of  his  or  its  agent  or  officer  aforesaid.^ 

§  447.  Minnesota.^ — Warehouse  receipts  and  bills  of  lading 
shall  be  negotiable,  and  may  be  transferred  by  indorsement  and 
delivery  of  receipt  or  bill  of  lading;  and  any  person  to  whom  the 
said  receipt  or  bill  of  lading  may  be  transferred,  shall  be  deemed 
and  taken  to  be  the  owner  of  the  goods,  wares,  or  merchandise 
therein  specified,  so  as  to  give  security  and  validity  to  any  lien 
created  on  the  same,  subject  to  the  payment  of  freight  and 
charges  thereon.  All  warehouse  receipts,  or  bills  of  lading, 
which  shall  have  the  words  "  not  negotiable"  plainly  written 
on  the  face  thereof  shall  be  exempt  from  the  provisions  of  this 
act. 

§  448.  Missouri.* — All  receipts  issued  or  given  by  any  ware- 
houseman, or  other  person  or  firm,  and  all  bills  of  lading,  trans- 

'  lb.  §  2.  i  R.  S.,  1879,  §§   558,  559,  p.   88; 

"  lb.  §  4.  ib.  1889,  ch.  18,  §  744. 

^  Statutes   of  Minnesota,   1878,  p. 
1013. 

335 


§  448.]  BILLS    OF    LADING.  [CHAP.  XXXII. 

portation  receipts  and  contracts  of  affreightment  issued  or  given 
bj  any  person,  boat,  railroad,  or  transportation  or  transfer 
company,  for  goods,  wares,  merchandise,  grain,  flour,  or  other 
produce,  shall  be  and  are  hereby  made  negotiable  by  written 
indorsement  thereon,  and  delivery  in  the  same  manner  as  bills 
of  exchange  and  promissory  notes;  and  no  printed  or  'written 
conditions,  clauses,  or  provisions  inserted  in  or  attached  to  any 
such  receipts,  bills  of  lading,  or  contracts  shall  in  any  way  limit 
the  negotiability  or  affect  any  negotiation  thereof,  nor  in  any 
manner  impair  the  rights  and  duties  of  the  parties  thereto,  or 
persons  interested  therein  ;  and  every  such  condition,  clause,  or 
provision  purporting  to  limit  or  affect  the  rights,  duties,  or  lia- 
bilities created  or  declared  in  this  act,  shall  be  void  and  of  no 
force  or  effect. 

All  bills  of  lading  and  transportation  receipts  of  every  kind, 
given  by  any  carrier,  boat,  vessel,  railroad,  transportation,  or 
transfer  company,  may  be  transferred  by  indorsement  in  writing 
thereon,  and  the  delivery  thereof  so  indorsed  ;  and  any  and  all 
persons  to  whom  the  same  may  be  so  transferred  shall  be 
deemed  and  held  to  be  the  owner  of  such  goods,  wares,  mer- 
chandise, grain,  flour,  or  other  produce  or  commodity,  so  far  as 
to  give  validity  to  any  pledge,  lien,  or  transfer  given,  made,  or 
created  thereby,  as  on  the  faith  thereof,  and  no  property  so 
stored  or  deposited,  as  specified  in  such  bills  of  lading  or  re- 
ceipts, shall  be  delivered,  except  on  surrender  and  cancellation 
of  such  receipts  and  bills  of  lading,  provided,  however,  that 
all  such  receipts  and  bills  of  lading,  which  shall  have  the 
words  "  not  negotiable"  plainly  written  or  stamped  on  the  face 
thereof  shall  be  exempt  from  the  provisions  of  this  act. 

It  is  provided  by  the  criminal  code  of  Missouri'  that  if  any 
commission  merchant,  agent,  or  other  person,  storing  or  ship- 
ping any  grain,  flour,  or  other  produce  or  commodity,  or  any 
person  to  whom  any  such  property  is  consigned,  and  who  shall 
come  in  possession  of  a  bill  of  lading  or  warehouse  receipt  for 
such  property,  for  or  on  account  of  another  person  or  other 
persons,  shall  hypothecate,  negotiate,  or  pledge  such  bill  of 
lading   or  warehouse   receipt,  without   the  written   authority 

^   R.  S.  1879,  §  1348,  p.  237. 

336 


CEIAP.  XXXIL]      negotiability   OF    BILL   OF   LADING.  [§  449. 

therefor  of  the  owner  or  consignor  of  such  propci'ty ;  or  if 
having  so  disposed  of  any  such  bill  of  lading  or  warehouse 
receipt,  shall  fail  to  account  for  or  pay  over  the  proceeds  thereof 
forthwith  to  his  principal  or  the  owner  of  such  property,  in 
either  or  any  of  such  cases  he  shall  be  adjudged  guilty  of  fraud, 
and  shall  on  conviction  be  punished  by  fine  not  exceeding  five 
thousand  dollars,  or  by  imprisonment  in  the  penitentiary  for  a 
terra  not  exceeding  five  years,  or  by  both  such  fine  and  im- 
prisonment: provided  that  nothing  herein  shall  be  construed 
to  prevent  such  consignee  or  other  person  lawfully  possessed 
of  such  bill  of  lading  or  warehouse  receipt  from  pledgino-  the 
same  to  the  extent  of  raising  sufficient  means  thereby  to  pay 
charges  for  storage  and  shipment,  or  advances  drawn  for  on 
such  property  by  the  owner  or  consignor  thereof;  and  a  draft 
or  order  by  such  owner  or  consignor  for  advances,  shall  be  held 
and  taken  to  be  "  written  authority,"  within  the  meaniiig  of 
this  section,  for  the  hypothecation  of  such  bill  of  lading  or 
warehouse  receipt,  to  the  extent,  and  only  to  the  extent  of 
raising  the  means  to  meet  such  draft,  and  to  pay  such  freio-hts 
and  storage. 

§  449.  Nevj  For/,-.'— Bills  of  lading  given  for  any  goods,  wares, 
merchandise,  grain,  flour,  produce,  or  other  commodity,  may  be 
transferred  by  indorsement  thereof,  and  any  person  to  whom 
the  same  may  be  so  transferred  shall  be  deemed  and  taken  to 
be  the  owner  of  the  goods,  wares,  and  merchandise  therein 
specified,  so  far  as  to  give  validity  to  any  pledge,  lien  or  transfer 
made  or  created  by  such  person  or  persons ;  but  no  property 
shall  be  delivered  except  on  surrender  and  cancellation  of  said 
original  bill,  or  the  indorsement  of  such  delivery  thereon  in  case 
of  partial  delivery.  All  bills  of  lading,  however,  which  shall 
have  the  words  "  not  negotiable"  plainly  written  or  stamped  on 
the  face  thereof,  shall  be  exempt  from  the  provisions  of  this 
section. 

In  the  penal  code  of  iN'ew  York^  it  is  provided  that  a  person 
carrying' on  the  business  of  a  warehouseman,  wharfinger  or 

'  R.  S.  vol.  III.,  7  ed.  p.  2260  ;  L.  ^  Chap.  13  of  the  Penal  Code,  see. 

1858,  c.   326,  §  6,  as  amended  by  L.  633;  sec  629;  see.  Colgate  v.  Penn- 

1859,  c.  353,  ib;  see  Colgate  v.  Penn-  sylvania  Co.,  102  N.  Y.  120. 
sylvania  Co.,  102  N.  Y.  120. 

22  337 


§  451.]  BILLS   OF   LADING.  [CIIAP.  XXXII. 

Other  depositary  of  property  who  delivers  to  another  any  mer- 
chandise for  which  a  bill  of  lading,  receipt  or  voucher  has  been 
issued,  unless  such  receipt  or  voucher  bears  upon  its  face  the 
words  "  not  negotiable"  plainly  written  or  stamped,  or  unless 
such  receipt  is  surrendered  to  be  cancelled  at  the  time  of  such 
delivery,  or  unless  in  the  case  of  a  partial  delivery,  a  memoran- 
dum thereof  is  indorsed  upon  such  receipt  or  voucher,  is  pun- 
ishable by  imprisonment  not  exceeding  one  year,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  by  both. 

§  450.  Pennsylvania} — Warehouse  receipts  and  bills  of  lading 
shall  be  negotiable,  and  may  be  transferred  hy  indorsement  and 
delivery  of  said  receipt  or  bill  of  lading  ;  and  any  person  to  whom 
the  said  receipt  or  bill  of  lading  may  be  so  transferred,  shall  be* 
deemed  and  taken  to  be  the  owner  of  the  goods,  wares,  and 
merchandise  therein  specified,  so  as  to  give  security  and 
validity  to  any  lien  created  on  the  same  subject  to  the  payment 
of  freight  and  charges  thereon  ;  and  no  property  on  which  such 
lien  may  have  been  created,  shall  be  delivered  by  said  ware- 
houseman, wharfinger,  or  other  person,  except  on  the  surrender 
and  the  cancellation  of  said  original  receipt  or  bill  of  lading ; 
or  in  the  case  of  a  partial  sale  or  release  of  the  said  merchan- 
dise, by  the  written  assent  of  the  holder  of  said  receipt  or  bill 
of  lading  indorsed  thereon. 

All  warehouse  receipts  or  bills  which  shall  have  the  words 
"  not  negotiable"  plainly  written  or  stamped  on  the  face  thereof, 
shall  be  exempt  from  the  provisions  of  this  act. 

§  451.  Wisconsin^ — Warehouse  receipts,  bills  of  lading,  or  rail- 
road receipts  given  for  any  goods,  wares,  merchandise,  lumber, 
timber,  grain,  flour,  or  other  produce  or  commodity,  stored,  ship- 
ped, or  deposited  with  any  warehouseman,  wharfinger,  vessel, 
boat,  or  railroad  companj^,  or  other  person,  on  the  face  of  which 
shall  not  be  plainly  written  the  words  "  not  negotiable,"  may  be 
transferred  by  deliverj^,  with  or  without  indorsement  thereof; 
and  any  person  to  whom  the  same  may  be  so  transferred  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares,  and 

'  Penna.  Act,  24  Sept.,  1866;  P.  &  B.'s  Annotated  Statutes,  1889,  §§ 
L.  1363.  4194,  4425. 

2  R.    S.,    1878,  §§  4194,  4424.    .S. 

338 


CHAP.  XXXII.]      NEGOTIABILITY    OF   BILL   OF   LADING.  [§  452. 

merchandise  therein  specified,  so  far  as  to  give  validity  to  any 
pledge,  lien,  or  transfer  made  or  created  by  such  person  or  per- 
sons;  but  no  such  property  shall  be  delivered  except  on  sur- 
render and  cancellation  of  said  original  receipt  or  bill  of  lading, 
or  the  indorsement  of  such  delivery  thereon,  in  case  of  partial 
delivery. 

Any  receipt,  bill  of  lading,  voucher,  or  other  document  issued 
by  any  Avarehouseman,  wharfinger,  master  of  a  vessel  or  boat, 
or  any  officer,  agent,  or  clerk  of  any  railroad,  ex[)ress,  or  trans- 
portation company,  shall  be  transferable  by  delivery  thereof, 
without  indorsement  or  assigimient,  and  any  person  to  whom 
the  same  is  so  transferred,  shall  be  deemed  and  taken  to  be  the 
owner  of  the  property  therein  specified,  so  far  as  to  give  validity 
to  any  pledge,  lien,  or  transfer,  made  or  created  by  such  person, 
unless  such  receipt,  bill  of  lading,  voucher,  or  other  document 
shall  have  the  words  "  not  negotiable"  plainly  written  or  stamped 
on  the  face  thereof. 

§  452.  By  a  comparison  of  these  statutes  it  will  be  observed 
that  their  pivotal  language  varies  in  each  case.  The  distinction 
drawn  by  two  recent  decisions  from  this  variation  in  their  terms 
is  of  the  utmost  importance.  It  is  clear  from  these  decisions 
that  the  statutes  are  to-be  divided  into  two  classes, those  which 
prescribe  the  manner  in  which  bills  of  lading  may  be  transferred, 
and  those  which  prescribe  the  effect  of  a  transfer  in  the  desig- 
nated manner.  It  -is  clearly  established  that  a  statute  making 
bills  of  lading  negotiable  by  indorsement  and  delivery  in  the 
same  m'anner  as  bills  of  exchange  and  promissory  notes,  or 
making  them  negotiable  and  transferable  by  indorsement  and 
delivery,  does  not  attach  to  their  indorsement  and  delivery  all 
the  consequences  flowing  from  the  negotiation  of  bills  of  exchange 
and  promissory  notes.  The  quality  conferred  upon  these  instru- 
ments by  such  a  statute  is  held  to  be  negotiability  alone,  that  is, 
the  capability  of  being  transferred  in  the  manner  indicated  so 
as  to  give  the  transferree  a  right  to  bring  suit  for  the  goods, 
or  equivalent  damages,  in  his  own  name ;  not  those  qualities 
which  are  not  essential  to  mere  negotiability,  but  are  additional 
incidents  of  bills  of  exchange  and  promissory  notes.  The  pecu- 
liar qualities  of  the  latter  do  not  inhere  in  them  as  negotiable 
instruments,  but  have  been  attached  to  them  by  the  law  mer- 

339 


§  453.]  BILLS   OF   LADING.  [CUAP.  XXXII. 

chant  in  order  that  they  may  perform  exceptional  functions  in 
the  commercial  world.  In  other  words,  an  instrument  which 
may  be  neo;otiated  is  not  by  virtue  of  that  a  sacred  instrument 
in  favor  of  bona  fide  holders  for  value  without  notice. 

§  453.  It  is  a  well-established  rule  of  the  commercial  law  that 
if  a  bill  of  exchange  or  promissory  note,  indorsed,  in  blank  or 
payable  to  bearer,  be  lost  or  stolen  and  be  purchased  from  the 
finder  or  thief  without  any  knowledge  on  the  purchaser's  part 
of  want  of  ownership  in  the  vendor,  the  bona  fide  purchaser 
may  hold  it  against  the  true  owner  and  may  hold  it  when  he 
took  it  negligently  and  without  looking  beyond  the  instrument. 
Nothing  but  mala  fides  will  defeat  his  right.^  This  rule  however 
is  laid  down  not  by  reason  of  the  mere  fact  that  a  bill  or  note  is 
negotiable.  At  all  events  the  case  of  Shaw  v.  The  Railroad 
Company^  decides  either,  (1)  that  this  rule  is  not  applicable  to  a 
stolen  bill  of  lading  or,  (2)  that  a  purchaser  of  such  a  bill  who 
has  reason  to  believe  that  his  vendor  is  not  the  owner  of  the  bill, 
or  that  it  was  held  to  secure  the  payment  of  an  outstanding 
draft,  is  not  such  a  bona  fide  purchaser,  as  is  entitled  to  hold 
the  merchandise  covered  by  the  bill  against  its  true  owner. 
However,  although  the  fact  that  the  purchaser's  conduct 
bordered  very  closely  upon  mala  fides  seems  to  have  consider- 
ably influenced  the  court  in  this  case,  the  decision  may  be  safely 
accepted  as  establishing  the  first  point.  The  court  said,  "  In 
the  present  case  there  was  more  than  mere  negligence  on  the 
part  of  [the  purchaser  of  the  bill],  more  than  mere  reason  for 
suspicion,"  but  in  the  preceding  paragraph  of  the  opinion  it 
had  used  this  language :  "  Bills  of  lading  are  regarded  as  so 
much  cotton,  grain,  iron,  or  other  articles  of  merchandise.  The 
merchandise  is  very  often  sold  or  pledged  by  the  transfer  of  the 
bills  which  cover  it.  They  are,  in  commerce,  a  very  diflerent 
thing  from  bills  of  exchange  and  promissory  notes,  answering 
a  ditierent  purpose  and  performing  different  functions.  It  can- 
not be,  therefore,  that  the  statute  which  made  them  negotiable 
by  indorsement  and  delivery,  or  negotiable  in  the  some  manner 

^  Goodman  (;.  Harvey,  4  Ad.  &  E  ,  110;    Matthews  v.    Pgythress,   4  Ga. 

870;  Goodman  v.  Simonds,  20  How.  287. 

343;    Murray    v.    l.ardner,    2    Wall.  «  101  U.  S.  557. 
340 


CHAP.  XXXII.]      NEGOTIABILITY    OF    BILL    OF   LADING.  [§  454. 

as  bills  of  exchange  and  promissory  notes  are  negotiable,  in- 
tended to  change  totally  their  character,  put  them  in  all  respects 
on  the  footing  of  instruments  which  are  the  representatives  of 
money  and  charge  the  negotiation  of  them  with  all  the  conse- 
quences which  usually  attend  or  follow  the  negotiation  of  bills 
and  notes.  Some  of  these  consequences  would  be  very  strange, 
if  not  impossible,  such  as  the  liability  of  indorsers,  the  duty  of 
demand  ad  diem,  notice  of  non-delivery  by  the  carrier,  etc.,  or 
the  loss  of  the  owner's  property  by  the  fraudulent  assignment 
of  a  thief.  If  these  were  intended,  surely  the  statute  would 
have  said  something  more  than  merelv  make  them  neo-otiable 
by  indorsement.  No  statute  is  to  be  construed  as  altering  the 
common  law,  farther  than  its  words  import.  It  is  not  to  be 
construed  as  making  any  innovation  upon  the  common  law 
which  it  does  not  fairly  express.  Especially  is  so  great  an 
innovation  as  would  be  placing  bills  of  lading  on  the  same 
footing  in  all  respects  with  bills  of  exchange  not  to  be  inferred 
from  words  that  can  be  fully  satisfied  without  it.  The  law 
has  most  carefully  protected  the  ownership  of  personal  property, 
other  than  money,  against  misappropriation  by  others  than  the 
owner,  even  when  it  is  out  of  his  possession.  This  protection 
would  be  largely  withdrawn  if  tlie  misappropriation  of  its 
symbol  or  representative  could  avail  to  defeat  the  ownership, 
even  when  the  person  who  claims  under  a  misappropriation  had 
reason  to  believe  that  the  person  from  whom  he  took  the  prop- 
erty had  no  right  to  it." 

§  454.  Where,  however,  as  in  Maryland,  the  language  of  the 
statute  is  emphatically  to  the  point  that  bills  of  lading  shall  not 
only  be  transferable  by  indorsement  and  delivery,  but  that  the 
effect  of  such  indorsement  and  delivery  shall  be  the  same  as  in 
the  case  of  a  bill  of  exchange,  there  can  be  little  doubt  that,  so 
far  as  the  same  questions  of  title  can  arise  in  the  one  case  as  in 
the  other,  the  answers  to  those  questions  must  be  the  same.  It 
has  never  been  supposed  that  such  a  statute  contemplated  such 
an  application  of  its  own  language  as  would  be  manifestly  ab- 
surd. The  differences  between  tlie  two  classes  of  instruments 
are  inherent,  and  the  rights  and  obligations  attendant  upon  th^ 
negotiation  of  one  cannot  in  the  nature  of  things  be  reo-ulated 
in  the  precise  way  in  which  they  are  regulated  in  the  case  of 

341 


§  455.]  BILLS   OF   LADING.  [CHAP.  XXXII. 

the  other.  It  is,  however,  undoubtedly  true  that  tlie  gov- 
erning object  of  such  a  statute  is  to  vest  in  any  bona  Jide  holder 
of  a  bill  of  lading  for  value  an  absolute  title  to  the  goods 
described  in  it,  and  to  protect  that  title  from  impairment  by 
the  assertion  of  any  rights  or  equities  of  prior  holders  of,  or 
parties  to  it,  of  which  he  had  no  notice.  This  view  of  the 
Maryland  statute  was  taken  by  the  Supreme  Court  of  that 
State  in  the  case  of  Tiedman  ?;.  Knox.^  Although  in  that  case 
the  precise  point  raised  in  the  case  of  Shaw  v.  The  Railroad^ 
was  not  presented,  yet  it  was  squarely  decided  that  the  Mary- 
land statute  has  eifected  such  a  change  in  the  law  as  to  consti- 
tute a  party  receiving  a  bill  of  lading  in  payment  of  an 
antecedent  debt  a  purchaser  and  bona  jide  holder  thereof  for 
value  as  eft'ectually  as  though  the  instrument  had  been  a  bill  of 
exchange  or  promissory  note.  The  court  adverted  to  the  fact 
that  in  the  case  of  the  Baltimore  and  Ohio  Railroad  Company  v. 
Wilkins,^  decided  before  the  passage  of  the  statute,  it  was  held 
that  the  law  did  not  regard  bills  of  landing  as  "  negotiable  in 
the  same  sense  in  which  a  bill  of  exchange  and  promissory  note 
was,"  and  the  legislature  then  declared  that  they  shall  be  so 
negotiable,  using  the  very  language  of  the  prior  decision. 
"  This,"  said  the  court,  "  is  a  very  different  thing  from  merely 
prescribing  that  the  manner  of  their  negotiation  shall  be  by 
indorsement  and  delivery,"  as  was  done  by  the  statutes  of 
Peimsylvania  and  Missouri. 

§  455.  Where,  as  is  frequently  the  case,  bills  of  lading  are 
issued  in  sets  of  three,  it  umy  happen  that  ditit'erent  parts  of  the 
same  bill  may  be  transferred  to  different  parties  who  respec- 
tively make  advances  upon  them  in  good  faith.  In  such  a  case 
the  property  passes  to  the  first  transferree,  unless  a  subsequent 
transferree  has  an  equity  superior  to  that  of  being,  like  the  first, 
a  bona  jide  transferree  for  value,*  and  the  former  is  not  under 
any  obligation  to  do  any  further  act  to  assert  his  title.     These 

1  53  Md.  612.  Kent's  Comm.,  Vol.  III.  308  ;  Skilling 

2  101  U.  S.  557.  V.  Bollman,  6  Mo.  App.  76  ;  Weyknd 

3  44  Md.  27.  V.   Atchison,  etc.,  R.  R.  Co.,  30  Am. 
*  Meyerstein    v.    Barber,  L.    R.    4     &  Eng.  R.  Cases,  102  ;   s.  C.SSNorth- 

H.  L.  317;   Fearon   v.  Bowers,   1   H.     west,  133. 
Bl.  364 ;   1  Sm.  Ldg.  Cases,  p.  782 ; 

342 


CHAP.  XXXII.]      NEGOTIABILITY    OF   BILL    OF   LADING.  [^  455. 

rules  were  laid  down  in  Meyerstein  v.  Barber.^  In  that  case 
the  bill  was  issued  in  triplicate  and  all  of  the  copies  came  into 
the  possession  of  the  consignee.  The  latter  obtained  an  ad- 
vance upon  the  cargo  from  the  plaintiff,  transferring  to  him 
two  of  the  bills  as  security  therefor  and  fraudulently  retaining 
the  tliird.  This  he  pledged  to  the  defendant  as  security'for  an- 
other loan,  the  defendant  having  no  knowledge  of  the  ii rst.  The 
defendant  having  obtained  the  g(-»ods  from  the  carrier  under  the 
third  copy,  the  plaintiff  brought  his  action,  the  declaration 
being  for  money  had  and  received,  with  a  count  for  wrongful 
conversion.  He  was  held  entitled  to  recover.  "  There  can  be 
no  doubt,"  said  Lord  Westbury,  "  that  the  first  person  who 
for  value  gets  the  transfer  of  a  bill  of  lading,  though  it  be 
only  one  of  a  set  of  three  bills,  acquires  the  property  and  all 
subsequent  dealings  with  the  other  two  bills  must  in  law  be 
subordinate  to  that  first  one  and  for  this  reason,  because  the 
projierty  is  in  the  person  who  first  gets  a  transfer  of  the  bill  of 
lading."  In  reply  to  the  argument  "that  a  frightful  amount 
of  fraud  may  be  perpetrated  if  persons  are  allowed  to  deal  in 
this  way  with  bills  of  lading  drawn  in  sets,  if  you  allow  efficacy 
to  be  given  to  the  first  assignment  of  one  of  these  bills,  to  the 
detriment  of  persons  who  may  take  for  value  subsequent  assign- 
ments of  the  others,"  the  Lord  Chancellor  said :  "  All  that  we 
can  say  is,  that  such  has  been  the  law  hitherto  and  that  the 
consequences  of  the  supposed  evil,  whatever  they  may  be,  have 
not  been  considered  to  be  such  as  to  counterbalance  the  great 
advantages  and  facilities  afforded  for  the  transfer  of  bills  of 
lading.^     There  is  no  authority  or  reason  for  holding  that  the 

'   L.  R.,  4  H.  L.  317.  of  the  bill  of  lading,  that  it  has  been 

2  Earl   Cairns  remarked  upon   this  signed  in  more  parts  than  one,  will  be 

point,    in    Glynn    v.    East   and    West  to  require  that  all  the  parts  be  brought 

India  Doek  Co.,  L.  E,.,   7  App.  600:  in,   that  is  to  say,   that   all   the   title 

"The  mercantile  world  may,  if  they  deeds  are  brought  in.     I  know  that  is 

think  right,  alter  the  practice  of  giving  the  practice  with  regard  to  other  title 

bills  of  lading  in  more  parts  than  one.  deeds,  and  it  strikes  me  with  some  sur- 

But  even   supposing   that   the  bill  of  prise   that    any    one    would    advance 

lading  is  in  more  parts  than  one,  all  money  upon  a  bill  of  lading  without 

that  any  person  who  advances  money  taking  that  course  of  recjuiring  the  de- 

upon  a  bill  of  lading  will  have  to  do,  livery  up  of  all  the  parts.      If  the  per- 

if  he  sees,  as  he  will  see,  upon  the  face  son    advancing   the   money    does    not 

343 


§  456.]  BILLS    OF    LADING.  [CEAP.  XXXII. 

person  who  first  obtains  the  assignment  of  a  bill  of  ladincc,  and 
has  given  value  for  it,  shall  not  acquire  the  legal  ownership  of 
the  goods  it  represents.  It  seems  to  be  required  b^'  the  exigen- 
cies of  mankind.  It  may  be  a  satisfaction  to  be  told  by  Mr. 
Justice  WiLLES  (though  it  is  a  matter  upon  which  I  put  no 
reliance),  that  other  nations  concur  with  us  in  holding  that 
(whatever  inconveniences  there  may  be  attending  it)  the  person 
who  gets  the  first  assignment  for  value  is  the  person  to  be 
preferred." 

§  456.  In  this  decision  it  will  be  seen  that  the  actual  posses- 
sion of  the  goods  did  not  affect  the  question.  The  holder  of  the 
first  transferred  bill  was  held  to  be  under  no  obligation  to  give 
immediate  notice  of  his  title  to  the  carrier  or  his  agent  and 
was  permitted  to  recover  notwithstanding  that  the  transferree 
of  the  second  copy  had  obtained  the^oods.  As  in  Meyerstein 
V.  Barber,'  however,  it  was  held  that  although  the  goods  had  at 
the  time  of  these  transfers  been  actually  landed  at  a  wharf,  the 
eftect  of  the  bills  as  documents  of  title  had  not  been  spent, 
since  the  goods  having  been  stopped  for  freight,  the  "  engage- 
ment of  the  ship-owner  had  not  been  completely  fulfilled. "^ 
There  is  room  for  a  query  as  to  whether  the  rulings  there  made 
would  be  materially  iiffected  were  such  transfers  made  after  the 
obli^ijations  of  the  shipow^ier  had  been  completely  fulfilled,  and 
if  the  holder  of  the  first  transferred  bill  neglected  under  these 
circumstances  to  take  possession  until  after  it  had  been  obtained 
by  the  subsequent  transferree.  In  Meyerstein  v.  Barber,  it  was 
further  intimated  (though  the  point  did  not  arise  for  decision) 
that  a  carrier  or  warehouseman  who  has  no  notice  of  the  transfer 
of  one  of  a  set  of  bills  is  excused  to  the  holder  for  delivering 
the  goods  to  a  party  presenting  another  of  the  set  which  has  in 
fact  been  subsequently  taken ;  though  this  will  not  aflect  the 

choose    to    do    that,    another    course  courses,  it  appears  to  me  tliat  if  they 

■which  he  may  take  is,  is  to  be  vigilant  sutler,    they  suffer  in  consequence  of 

and  on  the  alert,  and  to  take  care  that  their  own  act."     But  see  remarks  in 

he  is  on  the  spot  at  the  first  arrival  of  Sanders  v.    McLean,    11   Q.   B.    Div. 

the  ship  in  the   dock.     If  those  who  327. 

advance    money    on    bills    of    lading        ^  L.  R.  4  H.  L.  317. 

do  not  adopt   one  or  other  of  these         ^  lb. 

344 


CHAP.  XXXII.]       NEGOTIABILITY    OF    BILL    OF    LADING.  [§  458. 

legal  ownership  of  the  goods  as  between  the  holders  of  the  two 
biHs. 

§  457.  This  question  arose,  however,  in  Glynn  v.  East  and  West 
India  Dock  Company,'  and  the  rule  propounded  as  a  dictum  in 
Meyerstein  v.  Barber,  was  there  laid  down  as  the  ratio  decidendi. 
In  that  case  merchandise  was  consigned  to  C.  &  Co.,  of  London, 
the  ship-master  signing  three  bills  of  lading  marked  respectively 
"First,"  "Second,"  and  "Third,"  and  each  bearing  the  proviso, 
"  the  one  of  which  bills  being  accomplished,  the  others  to  stand 
void."  During  the  voyage  C.  &  Co.,  pledged  the  bill  marked 
"  First"  to  a  bank  for  a  loan.  Upon  the  arrival  of  the  ship  the 
goods  were  lodged  with  the  defendant  company,  which  was 
notified  by  the  master  to  detain  them  until  the  freight  should 
be  paid.  C.  &  Co.  produced  to  the  company  the  bill  of  lading 
marked  "  Second"  unindorsed.  The  company  entered  C.  &  Co. 
upon  their  books  as  the  proprietors  of  the  goods  and  upon 
paj'ment  of  the  freight,  delivered  the  latter  to  other  parties 
upon  orders  signed  by  C.  &  Co.  The  dock  company  acted  in 
good  faith  and  without  any  knowledge  of  the  bank's  claim. 
It  was  held  that  the  bank  could  not  maintain  any  action  against 
the  dock  company.  Lord  Blackburn  said,  "  "Where  the  person 
who  produces  a  bill  of  lading  is  one  who — either  as  being  the 
person  named  in  the  bill  of  lading  which  is  not  indorsed,  or  as 
actually  holding  an  indorsed  bill — would  be  entitled  to  delivery 
under  the  contract,  unless  one  of  the  other  parts  had  been  pre- 
viously indorsed  for  value  to  some  one  else,  and  the  master  has 
no  notice  or  knowledge  of  anj'thing  except  that  there  are  other 
parts  of  the  bill  of  lading,  and  that,  therefore,  it  is  possible 
that  one  of  them  may  have  been  previously  indorsed,  I  think  the 
master  cannot  be  bound,  at  his  peril,  to  ask  for  this  other  part." 

§  458.  It  should  be  noted,  however,  that  in  another  part  of 
the  opinion  his  Lordship  said,  "  Where  the  master  has  notice  or 
probably  some  knowledge  of  the  other  indorsement  I  think  he 
must  deliver  at  his  peril  to  the  rightful  owner  or  interplead." 
The  two  classes  of  cases  are  clearly  distinguishable  and  Glynn 
V.  The  Dock  Company^  must  not  be  taken  as  an  authority  for 
the  existence  of  any  right  of  choice  in  the  carrier  as  between 

1  L.  R.,  7  App.  591.  2  lb. 

345 


g  459.]  BILLS    OF   LADING.  [CHAP.  XXXII. 

contestants  for  the  cargo  both  of  whom  are  known  to  him  as 
such.  The  contrary  doctrine  was  laid  down  in  Fearon  v.  Bow- 
ers,^ decided  in  1753,  where  it  was  held  (though  delivery  was 
made  by  the  carrier  to  the  party  who  would  be  actually  entitled 
thereto  under  the  rule  of  Meyerstein  v.  Barber,^  viz.,  to  the 
party  first  presenting  his  bill  of  lading  rather  than  to  a  party 
presenting  another  bill  subsequently,  but  before  delivery  to  the 
first)  that  according  to  the  usage  of  trade,  the  carrier  is  not 
bound  to  a'^certain  who  has  the  best  right  on  different  bills  of 
lading.  This  rule  was  adopted  in  a  dictum  in  The  Tigress,^ 
but  was  not  adopted  in  Glynn  v.  The  Dock  Company,  where 
no  occasion  arose  for  its  application.  It  has  been  considered 
in  that  case  and  elsew^here  very  doubtful  law.* 

^  4.")9.  Xotwithstanding  the  decision  in  Glynn  v.  East  and 
West  India  Dock  Company,  that  a  carrier  who  has  no  notice  of 
a  superior  right  may  deliver  the  goods  to  the  party  first  present- 
ino;  (Hie  of  a  set  of  bills,  it  was  held  in  Sanders  v.  McLean^  that  a 
purchaser  of  goods  to  be  paid  for  upon  delivery  of  bills  of  lading, 
is  bound  to  do  so  upon  the  tender  of  a  duly  indorsed  bill,  which 
is  ettective  to  pass  the  property,  notwithstanding  that  the  bill 
was  drawn  in  triplicate  and  that  all  copies  are  not  tendered  or 
accounted  for.  Bowen,  L.  J.,  said  :  "  If  we  were  to  hold  that 
such  a  tender  is  not  adequate,  we  must,  as  it  appears  to  me, 
deal  a  fiital  blow  at  this  established  custom  of  merchants,  ac- 
cording to  which,  time  out  of  mind,  bills  of  lading  are  draw^n 
in  sets  and  one  of  the  set  is  habitually  dealt  with  as  represent- 
ing the  cargo,  independently  of  the  rest The  only  pos- 
sible object  of  requiring  the  presentation  of  the  third  original 
must  be  to  prevent  the  chance,  more  or  less  remote,  of  fraud  on 
the  part  of  the  shipper  or  some  previous  owner  of  the  goods. 
But  this  practice  of  merchants,  it  is  superfluous  to  remark, 

is  never  based  on  the  supposition  of  possible  frauds 

The  vendor  was  not  entitled  to  reject  the  tender  of  the  only 
effective  document  on  the  bare  chance  that  a  third  efl'ective 
bill  of  lading  might  possibly  have  been  dealt  with,  when  in 
fact  it  had  not.     The  person  who  rejects  efiective  and  adequate 

'  1  H.  Bl.  364.  •»  Glynn  v.  The  Dock  Co.,  p.  611. 

«  L.  R.  4  H.  L.  317.  '  11  Q.  B.  Div.  327. 

8  32  L.  J.  Adm.  97. 
346 


CHAP.  XXXII.]      NEGOTIABILITY    OF   BILL    OF   LADING.  [§  459. 

documents  of  title  on  the  bare  chance  that  another  document 
may  possibly  be  outstanding,  does  so  at  his  own  risk.  If  his 
surmise  turns  out  to  be  well  founded,  his  rejection  of  the  tender 
would  be  justified.  But  if  it  is  a  mere  surmise,  and  has  no 
foundation  in  fact,  he  has  chosen  by  excess  of  caution  to  place 
himself  iu  the  wrong." 

847 


§  460.] 


BILLS   OF   LADING. 


[CIIAP.  XXXIII. 


CHAPTER  XXXIII. 

THE  BILL  OF  LADING  IS  A  MUNIMP^NT  OF  NO  TITLE  AS' 
AGAINST  THE  TRUE  OWNER,  WHEN  THE  PARTY  ISSU- 
ING OR  TRANSFERRING  IT  HAS  NO  TITLE  OR  AU- 
THORITY. 


The  general  principle,  §§460,  461,  462. 

The  question  considered  as  one  of 
bailnaent.  The  carrier  may  be  com- 
pelled to  disregard  his  bailor's  title 
and  recognize  that  of  the  true 
owner,  §  464. 

Want  of  notice  to  the  carrier  by  the 
true  owner  does  not  validate  the  bill- 
holder's  title,  §§465,  466. 


The  manner  in  which  the  carrier's 
bailor  obtained  possession  of  the 
goods,  whether  fraudulently  or  in 
good  faith,  is  immaterial,  §§  467, 
4G8. 

Unauthorized  delivery  by  an  agent 
confers  no  title,  §  469. 

Exception  where  an  apparent  owner- 
ship is  intended,  §  470. 


§  460.  The  language  of  many  opinions,  as  has  been  already 
remarked,  has  been  broader  than  is  warranted  by  the  decisions 
themselves  and  expressions,  intended  to  convey  no  more  than  a 
statement  of  the  transferability  of  the  bill  of  lading,  have  been 
misconstrued  as  opinions  'that  the  instrument  possesses  all  the 
incidents  of  commercial  paper.  The  leading  case  of  Lickbarrow 
V.  Mason,^  in  which  it  was  decided  that  a  vendee  who  has  ac- 
quired a  good,  though  defeasible,  title  may,  by  his  indorsement 
of  the  bill  of  lading  to  a  bona  fide  purchaser  for  value,  confer 
upon  the  latter  a  title  which  is  indefeasible,  has  been  frequently 
invoked  in  attempts  to  confer  upon  a  holder  who  has  no  title 
the  power  of  transferring  one  by  a  transfer  of  the  bill.  No 
such  power  is  attendant  upon  the  negotiation  of  the  instrument 
and  nothing  can  be  found  in  the  leading  case,  or  in  those  that 
follow,  to  establish  it.  The  general  rule  that  title  cannot  rise 
higher  than  its  source,  admits  of  no  question.  "  No  man  can 
sell  goods  and  convey  a  valid  title  to  them,  unless  he  be  the 
owner,  or  lawfully  represent  the  owner. "^     Although  title  to 

1  2  T.  R.  63;   1  H.  Bl.  357  ;   6  East,  21. 

2  Benjamin  on  Sales,  §  6  ;  Saltus  v.  Everett,  20  Wend.  267  ;  Howe  v.  Parker, 
2  T.  R.  376. 

348 


CHAP.  XXXIII.]      NO    TITLE    AGAINST    THE    TRUE   OWNER.  [§  461. 

chattels  is  usually  evinced  by  possession,  possession  does  not 
create  title  nor  enable  one  having  possession  to  convey  title. 
Certain  exceptions  to  the  general  principle  have  been  established 
in  England,  such  as  sales  made  in  market  overt  and  in  cases 
governed  by  the  Factors'  Act  and  in  both  England  and  America 
in  the  case  of  bills  of  exchange  and  promissory  notes,  but  the 
principle  has  not  by  any  means  been  abandoned  in  its  applica- 
tion to  symbolical,  as  well  as  actual,  possession,  in  other  words, 
in  its  application  to  bills  of  lading.  The  doctrine  of  Lickbar- 
row  V.  Mason*  constitutes,  indeed,  a  most  important  modifica- 
tion of  the  main  principle,  but  contains  nothing  at  variance 
with  it.  The  proposition  there  enunciated,  that  an  unpaid 
vendor  cannot  exercise  the  right  of  stoppage  in  transitu  against 
a  bona  fide  indorsee  for  value  of  the  bill  of  lading  from  the 
insolvent  purchaser,  is  founded  upon  the  fact  that  the  latter 
has  an  actual  title  to  the  goods  and  although  such  a  rule  per- 
mits the  ripening  of  a  defeasible  into  an  indefeasible  title  to 
the  prejudice  of  the  vendor,  it  nevertheless  contains  no  warrant 
for  disregarding  the  distinction  between  the  transfer  of  a  de- 
feasible title  and  an  attempt  to  transfer  a  title  which  has  no 
existence. 

§  461.  It  may  be  regarded  as  settled  that  a  bill  of  lading 
cannot,  generally  speaking,  represent  the  goods  which  it  pur- 
ports to  represent  unless  it  has  been  issued  to  their  true  owner.^ 
Were  it  otherwise  a  carrier  would  possess  the  absolute  power 
to  change  at  his  own  discretion  the  title  to  merchandise  in- 
trusted to  him  for  transportation,  by  delivering  a  bill  of  lading 
therefor  to  any  person  who  had  managed  to  secure  an  apparent 
right  of  ownership  or  disposal.  There  may,  as  was  observed 
in  the  case  of  Blossom  v.  Champion,^  be  cases  in  which  some 
act  or  misconduct  on  the  part  of  the  true  owner  would  estop 

12T.R.  63;    1  H.  Bl.  357  ;  6  East,  40;     Richardson    v.    Smith,    33    Ga. 

21 .  Suppl.  95  ;  Union  Transportation  Co. 

*  The  Idaho,  3  Otto,  575  ;   Blossom  v.   Yeager,  34  Ind.   1  ;    Farmers  and 

V.  Champion,  37  Barb.  554  ;  Dows  v.  Mechanics'   Bank  v.   Erie  Rwy.   Co., 

Perriss,  16  N.  Y.  325  ;   Moore  v.  Rob-  72  N.  Y.  188  ;   Benjamin  v.  Levy,  39 

inson,  62  Ala.  537  ;   Saltus  v.  Everett,  Minn.  11  ;   Young  v.  East  Ala.  R.  Co., 

20  Wend.  267  ;  Traders'  Bank  v.  Far-  80  Ala.  100. 
mers  and  Mechanics'  Bank,  60  N.  Y.         s  37  Barb.  554. 

349 


§  462.]  BILLS   OF   LADING.  [CHAP.  XXXIII. 

him  from  asserting  his  title  against  a  holder  of  the  bill  of  lading, 
but  the  general  rule  is  undoubted.  Its  operation  extends  to  a 
subsequent  purchase  of  such  a  bill  of  lading  in  good  faith  and 
for  a  valuable  consideration.  Here  lies  the  widest  divergence 
between  bills  of  lading  on  the  one  hand  and  bills  of  exchange 
and  promissory  notes  on  the  other.  Here  appears  most  clearly 
the  substantial  distinction  which  must  be  observed  in  applying 
the  word  "  negotiable"  to  the  two  classes  of  instruments. 

§  462.  In  the  case  of  Craven  v.  Ryder^  the  plaintift's  contracted 
to  sell  certain  goods  to  B.  French  &  Co.  and  sent  the  goods  by 
their  lighterman  to  be  laden  upon  a  vessel  of  which  the  de- 
fendant was  master,  with  an  order  to  receive  them  for  and  on 
account  of  them,  the  plaintifts.  Upon  the  completion  of  the 
loading  the  mate  in  command  gave  an  acknowledgment  that 
the  goods  were  received  on  board  the  ship  for  Hamburgh  "  for 
and  on  account  of"  the  plaintiffs,  it  being  the  custom  to  give 
such  a  receipt  pending  the  issuance  of  the  final  bill  of  lading. 
B.  French  &  Co.  contracted  for  the  resale  of  the  goods  to  Cal- 
das  and  received  from  him  the  price.  Caldas  resold  them  to 
Bene  to  whom  he  consigned  them,  receiving  the  latter's  accept- 
ances on  the  credit  of  the  consignment.  The  defendant,  with- 
out the  plaintiffs'  knowledge  or  consent,  issued  a  bill  of  lading 
to  Caldas  as  the  shipper  of  the  goods  deliverable  to  Bene  or 
order  at  Hamburgh.  B.  French  &  Co.  having  stopped  pay- 
ment before  paying  the  plaintiffs,  the  latter  attempted  to 
reclaim  the  goods  from  the  defendant.  They  were  held  en- 
titled to  do  so.  Their  right  was  in  this  case  strengthened  by 
the  fact  that,  in  accordance  with  the  custom  of  the  port,  it  was 
the  duty  of  the  defendant  to  issue  no  bill  of  lading  except 
to  the  party  presenting  and  surrendering  the  lighterman's  re- 
ceipt,— the  plaintiffs  thereby  retaining  a  control  over  the  goods 
at  the  time  of  the  issuance  of  the  bill  to  Caldas.  The  rule  con- 
tended for  by  counsel  however  upon  the  authority  of  Lickbar- 
row  V.  Mason, ^  that  there  is  no  case  in  which  the  right  of  stop- 
page may  be  exercised  after  a  resale  of  goods  and  payment  of 
the  price,  or  advancement  of  other  consideration  upon  the 
credit  of  the  goods  by  a  second  vendee,  was  clearly  rejected. 

'  6  Taunt.  433.  2  2  T.  R.  63;   1  H.  Bl.  357;   6  East,  21. 

350 


CHAP.  XXXIII.]      NO    TITLE    AGAINST    THE    TRUE    OWNER.  [^  464. 

§  463.  So,  in  Blossom  v.  Champion,'  the  plaintiff's  sold  goods 
to  B.,to  be  paid  for  in  cash  on  delivery  and  B.  sold  the  same  to 
W.  The  plaintiff's  by  order  of  B.  caused  the  goods  to  be  shipped 
on  board  a  vessel  of  which  the  defendant,  C,  was  master,  taking 
receipts  therefor,  which  they  continued  to  hold.  W.,  without 
having  paid  for  the  property  and  without  any  indicia  of  owner- 
ship save  the  fact  that  he  had  made  an  agreement  for  freight  in 
the  ship  by  which  it  was  to  carry  for  him  a  certain  quantity  of 
the  kind  of  goods  actually  shipped,  procured  from  the  agent  of 
the  ship  a  bill  of  lading  of  the  goods  and  indorsed  the  same  to 
parties  making  advances  upon  it.  It  was  proved  that  a  custom 
had  long  prevailed  at  the  port  of  shipment  to  deliver  bills  of 
lading  only  to  the  party  holding  the  receipt  of  the  master  or 
agent  of  the  vessel.  The  j).laintiffs  were  held  entitled  to  recover 
the  property  in  an  action  against  C.  and  W., — the  owners  of  the 
vessel  having  no  authority  to  deliver  a  bill  of  lading  to  a  party 
not  having  the  evidences  upon  which  bills  of  lading  were  cus- 
tomarily delivered. 

§  464.  Another  aspect  of  the  case  is  presented  when  the  rela- 
tions between  the  carrier  and  the  shipper  are  considered.  It 
is  most  forcibly  presented  when  a  bill  of  lading  is  issued,  not 
to  one  deriving  his  apparent  title  from  the  actual  shipper  or 
supposed  by  the  carrier  to  possess  a  title  so  derived,  but  to  an 
actual  shipper  who  afterwards  is  discovered  to  have  had  no 
title.  In  either  case,  however,  the  question  arises  whether  a 
common  carrier  may  be  compelled  by  the  true  owner  of  the 
goods  carried,  or  by  his  assignee  or  indorsee,  to  disregard  the 
bill  of  lading  which  he  has  issued  to  the  shipper;  whether,  in 
other  words,  a  bailee  is  not  estopped  from  denying  the  title  of  the 
party  who  entrusted  him  with  the  goods.  Upon  this  point  the 
Supreme  Court  of  the  United  States  passed  in  the  following 
language :2  "In  Rolle's  Abr.  606,  tit. '  Detinue,'  it  is  said,  'If 
the  bailee  of  goods  deliver  them  to  him  who  has  the  right  to 
them,  he  is  notwithstanding  chargeable  to  the  bailor  who  in 
truth  has  no  right ;'  and  for  this  9  Hen.  VI.  58,  is  cited.  And 
so,  if  the  bailee  deliver  them  to  the  bailor  in  such  a  case,  he  is 
said  not  to  be  chargeable  to  the  true  owner  (ib.  607),  for  which 

'  3  7  Barb.  554.  ^  2  xhe  Idaho,  3  Otto,  575. 

351 


I  465.]  BILLS   OF   LADING.  [CIIAP.  XXXIII. 

7  Hen.  YI.  22,  is  cited.  The  reasons  given  for  such  a  doctrine, 
however  satisfactory  they  may  have  been  when  they  were 
announced,  can  hardly  command  assent  now.  It  is  now  everj'- 
where  held  that  when  the  true  owner  has  by  legal  proceedings 
compelled  a  delivery  to  himself  of  the  goods  bailed,  sucli  de- 
livery is  a  complete  justification  for  non-delivery  according  to 
the  directions  of  the  bailor.  Bliden  v.  Hudson  River  Railroad 
Co.,  36  'N.  y.  403.  And  so  when  the  bailee  has  actually  de- 
livered the  property  to  the  true  owner,  having  a  right  to  the 
possession,  on  his  demand,  it  is  a  sufiicient  defence  against  the 
claim  of  the  bailor.  The  decisions  are  numerous  to  this  eft'ect. 
King  V.  Richards,  6  Whart.  418  ;  Bates  v.  Stanton,  1  Duer,  79; 
Hardman  v.  Willcock,  9  Bing.  382  ;  Biddle  v.  Bond,  6  Best  & 
S.  225.  If  it  be  said  that  by  accepting  the  bailment  the  bailee 
has  estopped  himself  from  questioning  the  right  of  his  bailor, 
it  may  be  remarked  in  answer  that  this  is  assuming  what  can- 
not be  conceded.  Undoubtedly  the  contract  raises  a  sla-ong 
presumption  that  the  bailor  is  entitled  ;  but  it  is  not  true  that 
thereby  the  bailee  conclusively  admits  the  right  of  the  princi- 
pal. His  contract  is  to  do  with  the  property  committed  to  him 
what  his  principal  has  directed— to  restore  it  or  to  account  for 
it.  Chelseman  v.  Exall,  6  Exch.  341.  And  he  does  account 
for  it  when  he  has  yielded  it  to  the  claim  of  one  who  has  right 
paramount  to  that  of  his  bailor.  If  there  be  any  estoppel,  it 
ceases  when  the  bailment  on  which  it  is  founded  is  determined 
by  what  is  equivalent  to  an  eviction  by  title  paramount,  that 
is,  b}^  the  reclamation  of  possession  by  the  true  owner." 

§  465.  Where  the  shippers  of  goods  sell  them  conditionally 
while  lying  in  a  vessel  awaiting  the  commencement  of  trans- 
portation, the  fact  that  they  did  not  give  the  carrier  any  notice 
of  the  conditional  character  of  the  sale,  does  not  warrant  the 
carrier  in  issuing  a  bill  of  lading  to  one  whom  he  merely  un- 
derstands to  be  the  dulj'  entitled  vendee  or  to  one  claiming 
under  the  latter ;  nor  does  it  give  any  validity  to  the  bill  as 
against  the  right  of  the  true  owner.^  In  most  ports  the  custom 
is  well  established — and  it  is  believed  to  be  universal — for  the 
carrier  to  issue  the  bill  of  lading  only  upon  the  surrender  of 

'  Brown  v.  Peabody,  13  N.  Y.  121  ;  Blossom  v.  Champion,  37  Barb.  554. 

352 


CHAP.  XXXIII.]      NO    TITLE   AGAINST    THE   TRUE    OWNER.  [§  467. 

the  lighterman's  receipt,  which  is  always  retained  by  the  ship- 
per in  the  meanwhile  until  the  transportation  is  about  to  com- 
mence, or  until  he  has  sold  the  goods  and  is  ready  to  deliver 
symbolical  possession.  This  custom  has  become  so  thoroughly 
settled  and  so  well  understood  as  to  rise  to  the  dignity  of  a  legally 
binding  mercantile  law.'  Of  it  the  carrier  is  bound  to  have 
cognizance  and  a  shipper  is  no  more  bound  to  notify  him  not 
to  transgress  it  than  to  warn  him  against  the  breach  of  any 
other' law.  It  would  seem  that  the  same  rule  should  hold  in 
inland  transportation  and  that  it  is  the  duty  of  the  railway 
company  or  other  carrier  to  deliver  a  bill  of  lading  only  upon 
the  })roduction- of  the  "  dray  receipt."  It  follows,  therefore,  that 
the  holder  of  a  bill  of  lading  which  has  been  issued  to  one  not 
the  true  owner  of  the  goods  has  no  stronger  title  under  the  bill 
by  reason  of  the  fact  that  the  true  owner  failed  to  notify  the 
carrier  not  to  issue  it. 

5^  466.  The  same  rule  as  to  notice,  of  course,  holds  where  the 
true  owner  of  the  goods  holds  bills  of  lading  as  his  muniment  of 
title  to  them.  Where,  as  is  frequently  the  case,  the  bill  is  issued 
in  sets  of  three  and  different  parts  come  into  the  hands  of  dif- 
ferent parties,  he  who  by  virtue  of  being  the  first  transferree  in 
good  faith  and  for  value  is  the  preferred  claimant,  is  under  no 
oblio-ation  to  give  notice  of  his  title  and  the  holder  of  that 
copy  of  the  bill  which  was  transferred  by  one  without  title  or 
authority  obtains  no  title  which  can  be  maintained  against  that 
of  the  true  owner.^ 

§  467.  The  consideration  of  the  question  under  discussion 
is  not  affected  by  the  manner  in  which  the  bailor  obtained 
possession.     It  has  sometimes  been  argued  that  the  carrier  is 

1  Blossom  V.   Champion,    37   Barb,  a  bill  of  lading.     They  are  no  more 

554  ;  Craven  v.  Ryder,  6  Taunt.  433  ;  negotiable  than  the  bill  of  lading  itself. 

Brower  v.  Peabody,   13  N.  Y.   121;  If  the  carrier  issue  a  bill  of  lading  to 

Schuster  v.  McKellar,  26  L.  J.  Q.  B.  a  thief  who  presents  the  lighterman's 

281  ;  Thompson  r.  Trail,  2  Car.  &  P.  receipt,  he  remains  liable  to  the  true 

334;   Ruck  v.  Hatfield,  5  B.  &  Aid.  owner.     Brower  v.    Peabody,   13    N. 

632.  Y.  121. 

It   is   to   be  noted,    however,    that        ^  Meyerstein  v.  Barber,  L.  R.  4  H, 

these  lightermen's  receipts  are  not  of  L.  317;  Glynn  w.  East  and  West  India 

such  a  character  that  their  production  Dock  Co.,  L.  R.  7  App.  605;  Skill- 

initself  warrants  the  carrier's  issuing  of  ing  u.  BoUman,  73  Mo.  665. 
28  353 


§  468.]  BILLS   OF   LADING.  [CUAP.  XXXIII. 

entitled  to  interpose  the  jus  terdi  as  an  excuse  for  failing  to 
deliver  the  goods,  only  when  he  has  been  compelled  by  legal 
proceedings  to  deliver  them  otherwise  or  when  his  shipper 
obtained  the  goods  by  fraud.  That  the  rule  whicli  estops 
him  from  denying  the  right  of  his  bailor  cannot  be  invoked 
where  the  latter's  possession  of  the  bill  has  been  obtained 
feloniously,  admits  of  little  discussion.'  To  establish  the 
contrary  rule  would  be  to  place  a  premium  upon  theft.  In 
cases  of  fraud  the  rule  is  equally  clear.^  In  Moore  v.  Robin- 
son,^ the  plaintiff  below,  Robinson,  the  true  owner  of  a 
quantity  of  cotton,  gave  to  one  Carter  authority  to  ship  the 
cotton  in  his,  the  plaintift"'s,  name  to  the  defendants  below, 
Moore  &  Co.,  giving  him,  however,  no  authority  to  make  the 
shipment  in  his  own  name.  This,  however.  Carter  did,  ob- 
taining from  the  railroad  company  by  which  he  shipped  the 
goods  a  bill  of  lading,  upon  which  he  obtained  advances  from 
Moore  &  Co.,  which  he  appropriated  to  himself.  Robinson 
brought  suit  against  Moore  &  Co.  for  the  value  of  the  cotton 
and  it  being  clear  that  Carter  had  fraudulently  assumed  an 
ownership  which  the  plaintiff  and  not  he  possessed,  the  court 
held  the  plaintifi'  entitled  to  recover.  So  in  Saltus  v.  Everett,* 
where  the  master  of  a  vessel  in  which  the  goods  were  origi- 
nally shipped  had  fraudulently,  at  an  intermediate  port,  trans- 
shipped the  goods  into  another  vessel,  from  the  captain  of 
which  he  obtained  a  bill  of  lading  in  his  own  name,  it  was 
held  that  a  purchaser  of  a  part  of  the  cargo  under  such  bill  of 
lading,  though  a  purchaser  for  value  and  in  good  faith,  obtained 
no  title  to  the  goods. 

§  468.  Not  only  in  cases  of  fraud,  but  also  in  cases  where 
the  shipper  actually  supposes  himself  to  be  the  possessor  of 
rights  to  the  property,  the  rule  will  be  enforced  which  pro- 
tects a  true  owner.  "  The  modern  and  best  considered  cases 
treat  as  a  matter  of  no  importance  the  question  how  the  bailor 
acquired  the  possession  he  has  delivered  to  his  bailee  and 
adjudge  that  if  the  bailee  has  delivered  the  property  to  one 

'  Brower   v.    Peabody,    13    N.    Y.  Richardson  v.  Smith,  33  Ga.  (Supple- 

121.  ment),  95. 

^  Moore  v.  Robinson,  62  Ala.  537;  ^  62  Ala.  537. 

Saltus   V.    Everett,    20    Wend.    267;  *  20  Wend.  267. 

354 


CHAP.  XXXIII.]      NO    TITLE    AGAINST    THE    TRUE    OWNER.  [§  470. 

who  had  the  right  to  it  as  the  true  owner,  he  may  defend  him- 
self against  any  claim  of  his  principal.''' 

In  Biddle  v.  Bond,^  the  Queen's  Bench  decided  that  the 
position  of  the  bailee  is  precisely  the  same,  whether  his  bailor 
was  honestly  mistaken  as  to  the  rights  of  the  third  person 
or  fraudulently  acting  in  derogation  of  them.  This  case  is 
quoted  with  entire  approval  and  followed  by  the  Supreme 
Court  of  the  United  States  in  The  Idaho^  and  by  the  New 
York  Court  of  Appeals  in  the  Western  Transportation  Com- 
pany V.  Barber.* 

§  469.  In  accordance  with  the  same  principle,  it  has  been 
held  that  a  special  agent  authorized  to  deliver  a  bill  of  lading 
only  upon  the  payment  of  a  bill  of  exchange  drawn  against  the 
goods  and  attached  to  the  bill  of  lading,  cannot  bind  his  prin- 
cipal by  a  delivery  of  the  bill  made  without  such  payment. 
A  party  obtaining  possession  of  the  bill  with  the  assent  of  such 
agent,  but  without  the  assent  of  the  principal,  acquires  no  title 
to  the  goods  as  against  the  latter.' 

§  470.  The  cases  under  consideration  will  of  course  be  dis- 
tinguished from  those  in  which  an  owner  may  have  delibe- 
rately caused  a  bill  of  lading  to  be  made  out  in  the  name  of 
another  for  the  very  purpose  of  clothing  the  latter  with  an 
apparent  ownership.  In  such  a  case  a  bona  fide  purchaser  will 
undoubtedly  be  protected, — the  principle  of  estoppel  prohibit- 
ing the  true  owner  from  advancing  an  adverse  claim.^ 

1  The  Idaho,  3  Otto,  575.  *  Stollenwerck     v.     Thacher,     115 

*.  6  Best  &  S.  224.  Mass.  224. 

3  The  Idaho,  3  Otto,  575.  ^  Saltus  v,  Everett,  20  Wend.  267  ; 

*  11  Sickels,  544.  Pickering  v.  Buck,  15  East,  44. 

355 


471.] 


BILLS   OF   LADING. 


[chap.  XXXIV. 


CHAPTER  XXXIV. 


THE  BILL  OF  LADING  AS   A  MUNIMENT   OR   AS    EVIDENCE 
OF  TITLE  IN  A  CONSIGNEE. 


The  bill  is  prima  facie  evidence  of  the 
consignee's  title,  §§  471,  472,  473, 
474. 

The  consignee  is^n'ma/acie  the  owner, 
although  the  carrier  be  paid  by  the 
consignor,  §  475. 

The  consignor's  property  is  sufficient 
to  enable  him  to  maintain  an  action 
for  a  failure  or  refusal  to  deliver 
the  goods,  §  476. 

The  consignee  may  sue  without  delivery 
of  the  bill,  when  the  consignor  re- 
leases his  title,  §  477. 

Or  upon  the  re-indorsement  of  the  bill, 
§478._ 

The  consignment  is  not  conclusive  evi- 
dence of  a  title  in  the  consignee, 
§§  479,  480,  481. 


Making  goods  deliverable  to  the  ven- 
dor's order  is  prima /aci'e  evidence 
of  intention  to  reserve  the  jus  dis- 
ponendi,  §§  482,  483. 

Making  goods  deliverable  to  the  ven- 
doi''s  agent  has  the  same  effect,  §  484. 

The  presumption  is  strengthened  when 
the  bill  is  pledged  to  secure  a  draft 
drawn  against  the  goods,  but  it  is 
not  thus  made  conclusive,  §§  485, 
486. 

Shipment  In  the  vendee's  vessel  does 
not  conclusively  rebut  the  presump- 
tion of  reserved  control,  §§  487,  488. 

The  reservation  of  the  jus  dispnnendi  is 
a  question  of  intention,  §§  489,  490. 

Where  the  consignee  is  the  consignor's 
factor,  §§  491,  492. 


§  471.  The  effect  of  a  consignment  of  goods  generally  is  to 
vest  the  property  in  the  consignee.  Where  goods  are  consigned 
without  reservation  on  the  part  of  the  consignor,  the  iwima  facie 
legal  presumption  is  that  the  consignee  is  the  owner.*  In  other 
words,  the  ordinary  effect  of  a  bill  of  lading  is  to  vest  in  the 
consignee  the  legal  title  to  the  goods  shipped.     Without  quali- 


^  Congar  v.  Chicago  and  Galena 
Union  R.  Co.,  17  Wis.  477;  Griffith 
V.  Ingledew,  6  S.  &  R.  (Pa.)  429  ; 
McCauley  r.  Davidson,  13  Minn.  162  ; 
Everett  v.  Saltus,  15  Wend.  474  ;  Ar- 
buckle  V.  Thompson,  1  Wright,  170; 
Lawrence  v.  Minturn,  17  How.  100; 
Grove  v.  Brien,  8  ib.  439 ;  Krulder  v. 
Ellison,  47  N.  Y.  36  ;  The  Mary  and 

356 


Susan,  1  Wheat.  25;  Watkins  v. 
Paine,  57  Ga.  50;  Merchants'  Dis- 
patch Co.  V.  Smith,  76  111.  542;  Wolf 
V,  Dietzsch,  75  ib.  205  ;  Sedgwick  v. 
Cottingham,  54  Iowa,  512  ;  Torrey  v. 
Corliss,  33  Me.  333  ;  Arnold  v.  Prout, 
51  N.  H.  587 ;  Walker  v.  The  State, 
9  Tex.  App.  39  ;  Schlessinger  v.  Strat- 
ton,  9  R.  I.  578. 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN   CONSIGNEE.  [§  472. 

fyino;  terras,  it  is  pmna  facie  evidence  that  the  specified  prop- 
erty belonsjs  to  the  consignee. 

§  472.  The  language  of  many  of  the  decisions,  in  stating  this 
general   rule,  has  been  broad  but  an  examination  will  sliow 
that  the  principle  really  intended  to  be  enunciated  is  not  by  any 
means  that  the  insertion  of  a  party's  name  in  the  bill  as  con- 
siiinee  constitutes  an  irrevocable  transfer  of  title  to  him,  even 
when  the  goods  are  delivered  to  the  carrier  and  the  bill  to  the 
consignee,1jut  that  when  there  is  no  proof  as  to  the  ownership 
of   the  property,  the  consignee  is  presumed  to  be  the  owner 
and  is  the  proper  party  to  sue  for  any  injury  to  or  detention  or 
misappropriation   of   it.      The    consignment   and   delivery   is 
prima  facie  evidence  of  the  sale  of  the  goods  to  the  consignee. 
With  this  qualification,  however,  it  may  be  safely  asserted  as  a 
general  rule,  that  when  the  goods  are  delivered  to  the  carrier 
and  the  bill  is  sent  to  the  consignee,  the  title  to  the  g:oods  is 
passed  to  the  latter  for  every  purpose,  except  of  defeating  the 
vendor's  right  of  stoppage  in  transitu,  or  his  right  to  insist  upon 
the  consignee's  performance  of  conditions  on  which  express 
contract  or  legal  implication  has  made  the  delivery  dependent. 
In  such  a  case,  were  a  loss  to  occur  in  the  transportation  of  the 
goods,  it  would  fall  upon  the  consignee,— the  property  in  them 
having  vested  in  him  immediately  upon  their  delivery  to  the 
carrier.!      Where,  therefore,  there  is  no  stoppage  in  transitu, 
the  general  rule  is  that  the  shipper,  by  delivery  to  the  carrier, 
divests  himself  of  all  control  of  the  goods.^     Where,  for  in- 
stance, goods  are  consigned  "  for  account  and  risk  of"  the  con- 

1  Rogers  v.  Great  Western  Ry.  Co.,  C.  550  ;  Jones  v.  Sims,  6  Porter  (Ala.) 

16  Up.'^Can.  Q.  B.  389  ;  Graff  v.  Fos-  138  ;  Ochs  v.  Price,  6  Heiskell,  483  ; 

ter,   67  Mo.  512;    Armentrout  v.  St.  Hobart   v.  Littlefiekl,   13  R.  I.   341; 

L.,'  K.  C.  &  N.  R.   Co.,  1  Mo.  App.  Walley  v.  Montgomery,  3  East,  585; 

158  ;     Wilcox    Silver    Plate    Co.    v.  Johnson  v.  Dodgson,  2  M.  &  W.  653  ; 

Green,    72   N.    Y.    20;    Caulkins   v.  Norman  u.  Phillips,  14  ib.  277  ;  Smith 

Hellman,  47  ib.  449;  Cross  i'.  O' Don-  v.    Hudson,    34    L.    J.    Q.    B.    145; 

nell,  44  ib.  661  ;  Hunter  v.  Wright,  Haille  v.  Smith,  1  B.  &  P.  563. 

12  Allen,  548  ;  Magruder  v.  Gage,  33  ^  Walley  v.   Montgomery,   3  East, 

Md.  344;  Frank  v.  Hoey,  128  Mass.  585;  Blum  v.  The  Caddo,  1  Woods, 

•     263  ;  Waldron  v.  Romaine,  22  N.  Y.  64,  and  authorities  in  note,  supra. 
868;  Fenton  v.  Braden,  2  Cranch  C. 

357 


g  474,]  BILLS   OF   LADING.  •      [CHAP.  XXXIV. 

sigiiee,  it  being  stipulated  by  the  consignor  that  the  latter  shall 
pay  the  freight  and  shall  pay  for  the  goods  by  accepting  drafts 
at  three  months,  if  the  consignor's  agent  obtain  possession  of 
the  goods  under  a  second  bill  of  lading  and  refuse  to  deliver 
them,  notwithstanding  the  consignee's  tender  of  his  accept- 
ances, the  consignee  may  maintain  them  against  the  agent.^ 

§  473.  In  Schmertz  v.  Dwyer,'^  a  merchant  in  Brazil  ordered 
goods  of  a  Pittsburgh  firm,  with  instructions  to  send  them  to 
Brazil  at  the  first  opportunity.  The  goods  were  shipped  from 
Pittsburgh  to  New  York,  with  instructions  to  the  forwarding 
merchants  at  New  York  to  ship  them  to  Brazil.  No  vessel  being 
found  for  some  months,  the  vendors  finally  ordered  the  sale  of 
the  goods  and  received  the  proceeds, — the  goods  having  greatly 
enhanced  in  value.  The  vendee  sued  for  .damages.  The  court 
held  him  entitled  to  recover, — the  consignment  of  the  goods 
and  the  forwarding  of  the  bill  to  him  having  fully  vested  the 
title  in  him. 

In  Grove  v.  Brien,^  the  defendant  shipped  a  quantity  of  nails 
to  Fowle  &  Sons,  for  the  purpose  of  securing  his  indebtedness 
to  one  Gilmor  and  took  from  the  carrier  a  bill  of  lading  mak- 
ins:  the  nails  deliverable  to  Fowle  &  Sons  "  for  the  use  of  Rob- 
ert  Gilmor."  It  was  held  that  the  gbods  were  not  subject  to 
attachment  "by  Grove,  a  creditor  of  Brien  and  that  Fowle  & 
Sons  had  no  valid  lien  upon  them  for  advances  previously  made 
to  Brien.  The  consignment  being  virtually  in  the  name  of 
Gilmor,  the  title  passed  to  him. 

§  474.  In  Bailey  v.  Hudson  River  Railroad  Company*  the 
plaintiffs  received  an  invoice  from  a  firm  to  which  they  had 
made  an  advance  upon  the  goods.  The  latter  were  by  agree- 
ment consigned  to  pay  this  advance  and  also  a  specific  debt  of 
the  consio-nors  and  under  such  consignment  were  delivered  to 
the  defendant  to  be  transported  to  the  plaintiffs.  Instead  of 
delivering  the  goods  in  accordance  with  the  consignment,  the 
defendant  at  the  request  of  a  member  of  the  consignor  firm 
changed  the  destination  of  the  goods  and  delivered  them  to 
another  party,  who  sold  them  and  appropriated  the  proceeds. 

^  Walley  v.  Montgomery,  3   East,         ^  g  How.  429. 
685.  ■»  49  N.  Y.  70. 

*  53  Pa.  St.  335. 
358 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN   CONSIGNEE.  [§  475. 

In  this  case  the  consignors  made  no  attempt  to  negotiate  the 
bill  of  lading  and  the  defendants  were  held  liable  to  the  plain- 
tiffs for  a  conversion  of  the  goods.  The  court  said:  "If  A. 
has  property  upon  which  he  has  received  advances  from  B. 
under  an  agreement  that  he  will  ship  it  to  B.  to  be  sold  to 
pay  the  advances,  or  to  pay  any  indebtedness ;  he  may  or  may 
not  comply  with  this  contract  [in  the  latter  case  of  course 
incurring  liability  for  the  breach].  He  may  ship  to  C,  or  to 
B.  upon  conditions,  but  if  he  ships  to  B.  in  pursuance  of  his 
contract,  the  title  vests  in  B.  upon  the  shipment.  The  highest 
evidence  that  he  has  so  shipped  is  the  consignment  and  un- 
conditional delivery  to  B.  of  the  bill  of  lading ;  but  if  A. 
retains  the  bill  of  lading  and  notifies  B.  by  letter  that  he  has 
shipped  the  property  for  him  in  pursuance  of  the  agreement, 
or  in  any  other  manner  the  intent  to  ship  is  thus  evinced, 
the  title  passes  as  etfectually,  as  between  them,  as  if  the  bill 
of  lading  had  been  delivered."  The  court  held  that  the  inten- 
tion of  the  consignors  to  vest  the  property  in  the  plaintiffs 
indisputably  appeared  by  the  agreement  prior  to  the  shipment, 
by  the  forwarding  of  invoices  to  the  plaintiffs,  by  the  fact  that 
the  shipment  was  unconditional  and  by  the  consignors'  reten- 
tion of  the  bill  of  lading  without  making  or  attempting  to 
make  any  use  of  it. 

§  475.  The  rule  that,  where  there  is  no  evidence  to  the  con- 
trary, the  law  w^ill  imply  ownership  in  the  consignee  and  vest 
in  him  a  right  to  bring  suit  against  the  carrier  for  any  breach 
of  the  latter's  duty  in  respect  of  the  goods,  holds  even  though 
the  consignor  has  paid  the  carrier  for  the  transportation  of  the 
goods.  In  Griffith  v.  Ingledew'  the  court  said  :  "  It  is  objected 
that  there  is  no  privity  of  contract  between  the  shipper  and 
the  consignee,  and  that  in  the  present  instance,  the  freight 
being  paid  by  the  shipper,  there  is  a  want  of  consideration  to 
support  a  promise  to  the  consignee.  It  is  unnecessary  to  decide 
whether  the  shipowner  could  have  supported  an  action  for  the 
freight  against  the  plaintiff",  or  whether  the  shipper,  who  paid 
the  freight,  might  have  maintained  an  action  in  his  own  name 
for   the   negligent   carriage   of   the   goods.      The   question   is 

1  6  S.  &  R.  (Pa.)  428. 

359 


§  476.]  BILLS    OF    LADING.  [CHAP.  XXXIV. 

whether  the  consignee  may  not  support  an  action.  And  for 
the  purpose  of  this  argument  it  is  to  be  assumed  that  the  con- 
sio-nee  is  the  owner  of  the  goods,  without  taking  the  equitable 
title  into  consideration.  It  is  nothing  to  the  defendant  who  is 
entitled  in  equity,  since  no  conflicting  equitable  claim  has  been 
brought  forward ;  but  this  action  is  in  truth  for  the  benefit  of 

the  equitable  owner A  promise  in  law  may  be  said  to 

have  been  made  to  the  plaintiff  that  the  goods  would  be  carried 
safely.  Indeed  it  might  almost  be  said  that  a  promise  m  fact 
was  made  to  the  plaintiff  for  the  bill  of  lading  does  not  ex- 
pressly make  a  promise  to  anybody.  It  runs  thus :  '  Shipped 
by  A.  T.  Patterson,  to  be  delivered  to  Robert  E.  Griffith  or 
his  assigns,  at  Philadelphia.'  It  would  be  doing  no  violence 
to  the  instrument  to  construe  it  as  a  promise  made  to  the 
plaintiff." 

§  476.  In  accordance  with  the  foregoing  principles,  it  has 
been  held  that  the  consignee  of  goods  delivered  to  a  common 
carrier  for  transportation  has  such  property  therein  as  to  enable 
him  to  maintain  an  action  for  a  failure  to  transport  or  deliver 
them.  The  bill  of  lading  or  receipt  of  the  carrier  is  sufficient 
to  establish  such  a  prima  facie  case  of  ownership  as  will  enable 
a  party  holding  it  to  sustain  an  action  for  a  breach  of  the  con- 
tract on  the  part  of  the  carrier.^ 

In  Arbuckle  v.  Thompson ,2  the  court  said  :  "  The  defendants 
asked  the  court  to  instruct  the  jury  that  the  plaintiff  had  not 
shown  property  in  himself  so  as  to  enable  him  to  maintain  his 
action.  The  furniture,  for  the  non-delivery  of  which  suit  was 
brought,  was  shipped  in  JSTew  York,  marked  0.  Colburn,  Mead- 
ville,  Pennsylvania,  care  Thompson  &  Arbuckle,  Erie,  Penna. 
Thompson  &  Arbuckle  were  forwarding  and  commission  mer- 
chants at  Erie  and  common  carriers  between  Erie  and  Mead- 
ville.  Now,  that  a  consignee  of  goods  delivered  to  a  common 
carrier  for  transportation  may  maintain  an  action  for  failure  to 
transport  or  deliver  them,  seems  hardly  to  admit  of  doubt.     The 

1  Arbuckle  v.  Thompson,  1  Wright,  Butler  v.  Smith,  6  George,  457  ;   Grif- 

170;   Fowler  v.  Cooper,   3   La.  ,215;  fith  v.  Ingledew,  6  S.  &  K.  428. 

Madison,  etc.,  R.  Co.  v.  Whitesel,  11  ^  \  .Wright,  170.    The  name  of  this 

Ind.  55  ;  Valle  v.  Cerre,  36  Mo.  575  ;  case  is  an  error;  it  should  be  Colburn 


V.  Arbuckle  &  Thompson. 


360 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN   CONSIGNEE.  [§  479. 

donbt  has  rather  been  whether  the  action  could  be  maintained  in 
the  name  of  the  consignor.  And  though  it  has  been  ruled  that  it 
may  be,  where  the  property  in  the  goods  is  proved  to  have  re- 
mained in  the  consignor,  yet  this  is  not  at  all  in  conflict  with  the 
right  of  the  consignee  to  sue  v/here  there  is  no  such  proof  of 
ownership.  Here  there  w^as  no  other  evidence  of  ownership 
than  what  was  furnished  in  the  bill  of  lading  or  receipt  of  the 
carrier,  and  these  established  2.  jprima  fade  case  of  ownership  in 
the  plaintiff  suflicient  to  enable  him  to  maintain  the  action." 

The  rule  of  course  does  not  apply  where,  by  virtue  of  a  con- 
tract between  the  vendor  and  his  consignee,  the  goods  did  not 
become  by  the  consignment  the  property  of  the  consignee  and 
he  was  not  at  any  risk  in  regard  to  them  until  they  actually 
reached  him.  In  such  a  case  the  consignor  should  be  the  plain- 
tiff in  "any  action  against  the  carrier. 

§  477.  While,  in  general,  delivery  of  a  bill  of  lading  to  the 
consignee,  or  delivery  and  acceptance  of  the  goods,  is  necessary 
to  convey  to  him  such  a  title  as  will  enable  him  to  sue  the 
carrier,  yet  the  same  result  may  bo  obtained  without  such 
delivery  by  the  consignor's  release  of  his  title  or  claim  to  the 
consignee,  with  the  latter's  assent,  after  the  cause  of  action  has 
arisen.*  Where  the  property  lost  is  a  package  of  money,  the 
consignee,  after  such  release,  may  maintain  an  action  for  money 
had  and  received.^ 

§  478.  Where  the  consignee  has  parted  with  his  bill  of  lading, 
as  by  indorsing  it  to  one  making  an  advance  upon  it,  its  rein- 
dorsement  to  him  upon  his  repayment  of  the  advance  will 
reinvest  him  with  his  right  under  the  original  contract  to  bring 
suit  against  the  carrier  for  a  wrongful  delivery.^ 

§  479.  The  mere  appearance  of  a  particular  party's  name 
how^ever  in  a  bill  of  lading  cannot,  of  course,  confer  upon  such 
a  party  an  absolute  title  to  the  goods.  It  may  confer  no  title 
at  all.  The  mere  signing  and  delivery  by  the  carrier  of  a  bill 
of  lading  does  not  in  itself  pass  title  in  the  goods  to  the 
consignee.*      The  consignment  is  not  a  creation  of  absolute 

1  Ela  V.  Express  Co.,  29  AVis.  611.  *  Mitchell  v.   Ede,  11   Ad.   &  Ell. 

2  lb.  888;     Conrad    v.    Atlantic   Ins.    Co., 

3  Short  0.  Simpson,  L.  R.  1  C.  P.  1  Peters,  444;  Allen  v.  Williams,  12 
248.  Pick.    297 ;     Pratt    v.    Parkman,    24 

361 


I  480.]  BILLS   OF   LADING.  [CHAP.  XXXIV. 

title  in  him.  Though  by  the  execution  and  delivery  of  the 
bill  of  lading  the  consignee  obtains  a  contingent  or  qualified 
interest  in  the  shipment  which  neither  the  carrier  nor  the 
shipper,  except  under  certain  circumstances,  can  divest,  yet,  as 
a  rule,  the  consignee's  title  is  not  complete  until  the  bill  of 
lading  comes  into  his  hands.'  Where  the  consignment  is 
attended  by  other  circumstances,  which  in  connection  with  it 
clearly  evince  an  intention  to  pass  the  title,  the  fact  that  the 
consignee  has  not  received  the  bill  of  lading  cannot,  of  course, 
defeat  his  title,  or  confer  title  upon  one  in  whose  favor  the  con- 
signor, subsequently  to  its  original  delivery,  alters  it.^  The  title 
of  the  consignee  in  such  a  case  however  exists  not  by  virtue  of 
the  bare  consignment,  but  by  virtue  of  other  elements  of  the 
case  constituting  a  complete  delivery. 

§  480.  Before  the  consignment  can  in  any  event  be  regarded 
as  vesting  title  in  the  consignee,  it  must  be  accepted  by  the 
latter.  Where  he  has  not  accepted  it  and  disclaims  any  interest 
in  it,  the  court  will  hold  the  title  to  be  revested  in  the  con- 
signor.^ In  accordance  with  the  same  principle,  where  the  bill 
is  indorsed  in  blank  and  sent  to  the  consignee  with  authority  to 
fill  up  the  blank,  the  consignment  can  vest  property  in  no  one 
until  the  blank  is  filled.*  Where  a  shipment  is  to  be  sold 
on  joint  account  of  the  consignee  and  shipper,  or  of  the  former 
alone  at  his  option,  the  property  does  not  vest  in  the  consignee 
until  he  so  elects  under  his  option.*  If  the  consignment  be 
rejected,  the  consignee  has  no  interest  thereunder  which  will 
enable  him  to  maintain  a  subsequently  acquired  possession  of 

ib.  42;   Bank  of  Rochester  v.  Jones,  ^  Summerill    v.    Elder,     1     Binney 

4  N.  Y.  497;   First  Nat.  Bk.  of  Cairo  (Pa  ),  106. 

V.  Crocker,  111  Mass.  163  ;   Taylor  v.  ^  Ezell  v.  English,  6  Porter  (Ala.), 

Turner,    87    111.    296;    Hall    v.    Ship  311;    Chopin   v.  Clark,  31  La.  Ann. 

Chieftain,    9    La.    318;    Hepburn    v.  Rep.    846;     Elu  v.   Express    Co.,    29 

Lee,  14  ib.  76.  Wis.  611;  Woolsey  v.  Cenas,    1  Mar- 

^  Bruce  v.  Andrews,   36  Mo.   593  ;  tini  (La.),  26  ;  Audenried  v.  Randall, 

Hausmanu.  Nye,  62  Ind.  485;   Wood-  3  Cliff.   99;  Peck  i;.  Ritchey,   66  Mo. 

ruff  V.    Nashville,   etc.,   Co.,  2   Head  114. 

(Tenn.),   87 ;    Saunders    v.    Bartlett,  •*  Chandler   v.    Sprague,    46    Mass. 

12  Heiskill  (Tenn.),  316;   Oliver  v.  306. 

Moore,  ib.  482.  ^  jhe  Venus,  8  Cranch,  253. 
362 


CHAP.  XXXIV.]      EVIDENCE    OF    TITLE   IN   CONSIGNEE.  [§  482. 

the  goods.^  So  where  a  conditional  shipment  is  made;  e.g.^ 
where  the  property  is  to  pass  upon  the  consignee's  acceptance 
or  payment  of  a  draft,  the  consignee  has  no  title  until  the  con- 
dition is  performed. 

§  481.  As  between  the  shipper  and  the  carrier,  there  is  no- 
thing final  or  irrevocable  in  that  part  of  the  bill  which  desig- 
nates the  destination  of  the  goods  and  the  former  may  change 
the  destination  at  any  time  before  the  bill  of  lading  or  the 
goods  themselves  are  delivered  to  the  consignee.  As  between 
the  shipper  and  the  consignee,  that  part  of  the  bill  which 
designates  the  party  to  whom  the  goods  are  to  be  delivered 
is  prima  facie  evidence  of  an  intention  to  confer  title  upon 
the  latter,  but  the  mere  filling  of  the  bill  with  his  name 
cannot  necessarily  constitute  him  the  vendee.  The  consign- 
ment is  not  an  invariable  equivalent  of  delivery.  Whether  or 
not  it  was  intended  to  operate  as  such  is  a  question  of  inten- 
tion and  that  intention  must  be  deduced  from  a  consideration  of 
all  the  circumstances  of  each  case.  No  general  rule  can  be  laid 
down  by  which  the  question  can  in  all  cases  be  determined. 
The  leading  approximate  rules  of  construction  which  are  war- 
ranted by  the  cases  are  set  forth  in  the  following  sections. 

§  482.  It  is  strong  prima  fade  evidence  of  the  vendor's  in- 
tention to  reserve  to  himself  the  jus  disponendi  and  prevent 
title  to  the  goods  shipped  from  passing  to  the  vendee,  that  the 
bill  of  lading  is  made  deliverable  to  the  order  of  the  vendor.^ 
Thus  in  EUershaw  v.  Magniac,^  the  plaintift",  a  merchant  at 
Leeds,  contracted  with  a  firm  carrying  on  business  at  London 
and  Odessa,  for  the  purchase  of  a  quantity  of  linseed  and  the 
Odessa  partner  drew  upon  the  plaintiff  bills  of  exchange  for  the 
price.  A  vessel  chartered  by  the  plaintifiT  proceeded  to  Odessa 
to  take  the  linseed  on  board.  The  Odessa  partner  wrote  to  the 
London  partner,  "With  regard  to  your  sales  of  linseed,  Mr. 

1  Brandt  v.  Bowlby,  2  B.  &  Ad.  224  ;  Security  Bank  v.  Luttgen,  29 
932.  Minn.   363 ;    Peoples'    Nat.  Bank   v. 

2  Mason  v.  Great  Western  R.  R.  Stewart,  3  Pugs.  &  Bur.  (New  Bruns- 
Co.,  31  Up.  Can.  Q.  B.  73;  Alder-  wick),  268;  Jenkyns  v.  Brown,  14 
man  v.  Eastern  R.  R.  Co.,  115  Mass.  Q.  B.  496. 

233  ;    StoUenwerck    v.    Thacher,    ib.         ^  6  Ex.  569. 

363 


§  483.]  BILLS   OF   LADING.  [CIIAP.  XXXIV. 

Ellersbaw  [the  plaintiff]  will  receive  a  part  by  The  Woodhouse" 
[the  vessel  chartered  by  the  plaintiff"].  A  portion  of  the  lin- 
seed was  shipped  by  the  vessel  and  the  Odessa  partner  obtained 
from  the  master  a  bill  of  lading  making  it  deliverable  "  unto 
order  or  assigns."  The  Odessa  partner,  being  in  difficulties, 
indorsed  the  bill  of  lading  for  value  to  a  third  party.  The 
court  held  that  there  was  no  such  delivery  of  the  goods  as  to 
vest  the  right  of  possession  or  property  in  the  plaintiff,  the 
circumstance  of  the  shippers  making  the  linseed  deliverable  to 
order  by  the  bill  of  lading  clearly  showing  the  intention  to  pre- 
serve the  right  of  property  and  possession  in  themselves  until 
they  had  made  an  assignment  of  the  bill  to  some  other  party. 
The  original  intention  of  delivering  the  goods  to  Ellershaw 
was  thus  not  exercised. 

§  483.  In  Ogg  V.  Shuter,*  the  plaintiffs  had  entered  into  a  con- 
tract with  a  French  merchant  for  the  purchase  of  twenty  tons  of 
potatoes  at  a  certain  price,  deliverable  in  the  course  of  the  cur- 
rent month  free  on  board  of  a  ship  at  Dunkirk,  payment  to  be 
by  cash  against  a  bill  of  lading,  a  part  payment  of  £30  to  be 
made  in  earnest  of  the  bargain.  The  part  payment  was  made 
and  the  potatoes  shipped  at  Dunkirk  by  the  vendor's  agent  and 
in  sacks  sent  over  for  the  purpose  by  the  plaintiffs.  The  bill 
of  lading  made  the  goods  deliverable  to  the  vendors'  order. 
The  defendant,  an  agent  of  the  vendor  to  whom  the  bill  of 
lading  had  been  indorsed,  presented  to  the  plaintiffs,  upon  the 
cargo's  arrival  in  London,  the  vendor's  draft  for  acceptance 
with  the  bill  of  lading  indorsed  by  the  defendant,  annexed  to 
it.  The  plaintiffs  supposing  that  the  shipment  was  short, 
refused  to  accept,  but  wrote  to  the  defendant  giving  him  notice 
that  the  potatoes  were  their  property  aud  that  if  he  parted 
with  them  to  anybody  else,  he  would  be  held  responsible.  The 
defendant  afterwards  sold  the  goods.  The  court  of  common 
pleas  held  that  the  contract  to  deliver  "free  on  board,"  the 
part  payment  of  the  price  and  the  shipping  of  the  potatoes  in 
the  plaintiffs'  own  sacks  over-balanced  the  presumption  of  the 
vendor's  reservation  of  the  jus  disponendi  arising  from  the  ex- 
pression "  cash  against  bill  of  lading"  and  the  drawing  of  the 

'  L.  R.  1  C.  P.  Div.  47. 
364 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN   CONSIGNEE.  [§  484. 

bill  to  the  vendor's  order.  Judgment  was  given  for  the  plain- 
t\ff.  This  was  reversed  by  the  Court  of  Appeal,  the  court 
saying,  "  We  think  this  much  is  clear,  that  where  the  shipper 
takes  and  keeps  in  his  own  or  his  agent's  hands  a  bill  of  lading, 
in  this  form  to  protect  himself,  this  is  effectual  so  far  as  to  pre- 
serve to  him  a  hold  over  the  goods  until  the  bill  of  lading  is 
handed  over  on  the  conditions  being  fulfilled,  or  at  least  until 
the  consignee  is  ready  and  willing  and  offers  to  fulfil  these 
conditions  and  demands  the  bill  of  lading." 

The  court  held  that  the  taking  and  holding  of  a  bill  drawn 
in  such  form  constitutes  not  merely  a  reservation  of  the  vendor's 
lien,  but  reserves  a  right  of  disposing  of  the  goods  so  long  at 
least  as  the  vendee  continues  in  default. 

§  484.  The  same  construction  applies  where  the  goods  are 
made  deliverable  to  an  agent  of  the  consignor.^  Thus,  in  The 
St.  Jose  Indiano^  the  vessel  was  captured  and  most  of  the  cargo 
condemned  as  the  property  of  an  enemy.  Lizaur,  of  Rio 
Janiero,  to  which  port  the  vessel  was  bound  when  captured, 
claimed  restitution.  The  captors,  however,  claimed  that  the 
property  was  at  the  risk  of  the  shipper,  D.  B.  &  Co.,  who 
were  enemies.  Although  the  bill  of  lading  did  not  specify 
to  whose  order  the  property  was  deliverable,  the  invoice  was 
headed  "consigned  to  Messrs.  D.  B.  &  F.,  by  order  and 
for  account  of  J.  Lizaur."  In  a  letter  accompanying  the 
invoice  and  bill  of  lading  the  consignors  wrote:  "For  Mr. 
Lizaur,  we  open  an  account,  etc.  We  cannot  yet  ascertain  the 
proceeds  of  his  hides,  etc.,  but  find  his  order  for  goods  will 
exceed  the  amount  of  these  shipments ;  therefore  we  consign 
the  whole  to  you,  that  you  may  come  to  a  proper  understand- 
ing with  him.'-'  The  court  held  that  Lizaur  had  no  claim,  the 
delivery  to  the  master  being  not  for  his  use,  but  for  the  con- 
signee, a  house  composed  of  the  same  persons  as  the  shippers 
and  acting  as  their  agents.  "  It  is  apparent  from  the  letter 
that  the  shippers  meant  to  reserve  to  themselves  and  to  their 
agents,  in  relation  to  the  shipment,  all  those  powers  which 
ownership  gives  over  property."^ 

^  Dows   V.   Nat,   Exchange   Bank,        ^  1  lb. 
1  Otto,  618;  The  St.  Jose   Indiano,       ^  "  In  general  the  rules  of  the  prize 
1  Wheat.  208.  ,  court  as  to  the  vesting  of  property  are 

365 


§  485.]  BILLS   OF   LADING.  [CHAP.  XXXIV. 

§  485.  Where  a  bill  of  lading  drawn  to  the  order  of  the 
consignor  is  assigned  to  one  who  discounts  a  draft  drawn 
against  the  goods,  the  presumption  drawn  from  the  form  of 
the  instrument  maybe  regarded  as  well-nigh  strengthened  to 
conclusiveness.  Such  a  transaction  clearly  implies  an  intention 
on  the  part  of  the  consignor  that  no  title  to  the  goods  shall 
pass  to  the  vendee  until  he  has  accepted,  or  paid,  the  draft 
drawn  against  him  for  their  price.^  Title  does  not  vest  in  the 
consignee  in  suet  a  case  until  he  has  complied  with  the  condi- 
tion. The  mere  fact  however  that  the  bill  of  lading,  with  a  blank 
indorsement,  is  attached  to  a  sight  draft  and  sent  by  the  ven- 
dors to  a  bank  as  their  agent  to  collect  the  one  and  deliver  the 
other,  does  not  constitute  in  itself  a  conclusive  presumption 
that  the  vendors  intended  to  thereby  retain  title  in  themselves. 
Where  the  other  circumstances  of  the  case  and  the  previous 
course  of  dealing  between  the  parties  indicate  an  intention  to 
pass  the  title,  such  a  retention  of  the  bill  will  be  held  to  be  a 
retention  of  possession  by  the  vendor  merely  as  the  vendee's 
bailee  or  agent, — the  goods  being  during  such  agency  at  the 
vendee's  risk.^  It  is  important  to  notice  that,  if  it  is  the 
intention  of  the  consignor  that  title  shall  pass  only  upon  the 
consignee's  acceptance  or  payment  of  drafts  drawn  against  the 
goods,  such  intention  must  be  manifested  by  the  form  of  the  bill 
and  by  the  consignor's  retention  of  its  possession  through  his 
agent.  Although  it  may  be  the  shipper's  expectation  and  inten- 
tion that  the  goods  shall  be  specifically  appropriated  to  take  up 
bills  drawn  by  him  against  the  consignee  the  proceeds  of  which 
have  been  used  for  the  purchase  of  the  goods,  the  property  will 
nevertheless  vest  absolutely  in  the  consignee  if  the  shipper 
mails  to  the  latter  a  bill  of  lading  of  the  goods  deliverable  to 
the  consignee's  order.     Thus  in  Ex  i^rte  Bonmar,^  Christiansen 

the  same  with  those  of  the  common  Western  R.  Co.,  31  Up.  Can.  Q.  B. 

law,"  ib.  212.  73;  People's  Nat.  Bank  r.  Stewart, 

•  Dowsy.  National  Exchange  Bank,  3  P.  &  B.  (New  Brunswick)  268. 

1    Otto,    618;    Alderman  v.   Eastern  ^  Hobart   v.    Littlefield,    13    R.    I. 

R.  Co.  110  Mass.  233  ;    Stollenwerck  341.     In  this  case  the  form  of  the  bill 

V.  Thacher,  ib.   224  ;    Security  Bank  of  lading  does  not  appear. 

V.  Suttgen,  29  Minn.  363  ;  Jenkyns  v.  »  L.  R.  2  Ch.  278. 
Brown,  14  Q.  B.  496  ;  Mason  v.  Great 

366 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN    CONSIGNEE.  [§  486. 

&  Co.,  commission  merchants  in  South  America  for  Tappen- 
beck  &  Co.  of  England,  drew  bills  of  exchange  upon  the  latter, 
which  they  had  discounted  in  Para  and  with  the  proceeds  of 
which  they  purchased  goods  for  shipment  to  Tappenbeck  &  Co. 
They  shipped  the  goods  and  sent  bills  of  lading  therefor,  mak- 
ing the  goods  deliverable  to  Tappenbeck  &  Co.,  together  with 
invoices,  direct  by  post  to  the  latter  firm,  advising  them  at  the 
same  time  of  the  drawing  of  the  drafts  and  requesting  them 
to  carry  the  price  of  the  goods  to  their  account.  While  a 
cargo  of  goods  shipped  under  this  arrangement  was  in  transit 
both  firms  stopped  payment.  The  liquidating  trustee  of  the 
English  firm  took  possession  of  the  cargo  upon  its  arrival. 
The  creditors  of  the  South  American  firm  claimed  to  have  it 
appropriated  to  meet  the  bills  drawn  against  it,  some  of  which 
at  the  time  when  Tappenbeck  &  Co.  stopped  payment  had  been 
accepted  but  not  paid  and  some  not  accepted.  The  court  held, 
however,  that  Christiansen  &  Co.,  whether  regarded  as  the 
agents  of  the  English  firm  or  as  vendors,  had  parted  with  all  the 
property  in  the  goods  and  had  no  power  to  direct  appropria- 
tion of  the  proceeds.  As  soon  as  the  goods  were  put  on  board 
ship  at  Para  and  the  bills  of  lading  making  the  goods  deliver- 
able to  the  consignees  were  put  in  the  post  directed  to  the  con- 
signees, the  goods  were  placed  thereby  beyond  the  control  of 
Christiansen  &  Co.  and  the  property  in  them  passed  to  Tappen- 
beck &  Co.  "  We  conceive  it  as  perfectly  settled,"  said  the 
court,  "  that  if  the  consignor  in  such  a  case  wishes  to  prevent 
the  property  in  the  goods  and  their  right  to  deal -with  the  goods 
whilst  at  sea,  from  passing  to  the  consignee,  he  must  by  the 
bill  of  lading,  make  the  goods  deliverable  to  his  own  order 
and  forward  the  bill  of  lading  to  an  agent  of  his  own.  If  he 
does  not  do  that,  he  still  retains  the  right  of  stopping  the  goods 
in  transitu,  but  subject  to  that  right,  the  property  in  the  goods 
and  the  right  to  the  possession  of  the  goods  is  in  the  consignee." 
Shepherd  v.  Harrison*  was  distinguished  by  pointing  out  that 
the  consignor  in  that  case  took  the  precautions  to  retain  control 
which  had  been  omitted  by  the  consignor  in  this. 

§  486.  Where,  however,  the  bill  of  lading  is  not  mailed  by 

I  L.  R.  5  H.  L.  116. 

367 


I  488.]  BILLS   OF   LADING.  [CHAP.  XXXIV. 

the  consignor  direct! J  to  the  consignee,  but  is  transmitted  by  the 
former  to  a  discounting  bank  and  the  bank  sends  to  the  consignee 
the  bill  of  lading,  stating  at  the  same  time  that  the  property  was 
to  be  drawn  against  by  the  consignor  through  the  bank,  the 
property  does  not  pass  unconditionally  to  the  consignee,  not- 
withstanding that  the  bill  of  lading  is  neither  made  deliverable 
to  order  of  the  consignor  nor  retained  absolutely  in  the  posses- 
sion of  the  consignor  or  his  agent.  The  notification  by  the 
bank  at  the  time  of  delivering  the  bill  of  lading  that  the  goods 
have  been  drawn  against  by  the  consignor,  was  decided  in 
Cayuga  Bank  v.  Daniels^  to  be  of  the  same  eflect  as  though  the 
bill  of  lading  had  been  attached  to  the  draft  and  possession  had 
been  tortiously  obtained  by  detaching  the  bill  of  lading  without 
accepting  the  draft. 

§  487.  The  fact  that  the  goods  were  shipped  in  a  vessel 
owned  or  provided  by  the  vendee  does  not  in  itself  rebut  the 
presumption  of  a  reserved  control  arising  from  the  fact  that 
the  bill  of  lading  was  made  deliveral)le  to  the  shipper's  own 
order  or  that  of  his  agent.^  Kor  does  the  fact  that  the  goods 
are  delivered  at  the  terminus  of  the  transit  into  an  elevator 
owned  by  the  vendee.  Thus,  in  Dows  v.  The  !N"ational  Ex- 
change Bank,^  where  the  vendor's  agent  directed  the  carrying 
vessels  on  which  wheat  had  been  shipped  to  deliver  it  to  an 
elevator  of  w^hich  the  proprietors  were  the  drawers  of  drafts 
against  the  shipment  "  to  be  held  subject  to  and  delivered  only 
on  payment  of  the  draft,"  etc.,  it  was  held  that  the  draw^ee's 
possession  was  merely  that  of  a  bailee  and  his  subsequent  sale 
and  delivery  of  the  wheat  conferred  no  title. 

§  488.  In  the  well-known  case  of  Turner  v.  The  Trustees  of  the 
Liverpool  Docks,^  the  plaintiffs'  assignors,  merchants  of  Liver- 
pool, ordered  a  shipment  of  cotton  from  Menlove  &  Co.,  mer- 
chants at  Charleston,  to  be  shipped  from  Charleston  upon  the 
purchasers'  own  vessel.  The  master  signed  a  bill  of  lading  of 
the  cotton  to  be  delivered  at  Liverpool  "  to  order  or  assigns," 
freight  free.     Menlove  &  Co.  drew  drafts  upon  the  purchasers 

'  47  N.  Y.  631.  Dows  V.  Nat.  Exchange  Bank,  1  Otto, 

"  Turner  v.  Trustees  of  the  Liver-  618. 

pool  Docks,  6  Ex.   543;    Moakes  v.  ^  1  Otto,  618. 

Nicholson,    19    C.    B.    N.    S.    290;  *  6  Ex.  543. 
368 


CHAP.  XXXIV.]      EVIDENCE   OF    TITLE    IN   CONSIGNEE.  [§  488. 

and  desired  the  latter  by  letter  to  insure  the  cotton.  They  also  , 
sent  to  them  an  invoice  stating  the  shipment  of  the  cotton  by 
order  and  for  account  and  risk  of  the  purchasers.  The  pur- 
chasers having  become  bankrupt  before  the  arrival  of  the  cotton, 
]\Ienlove  &  Co.  claimed  a  right  to  stop  the  cotton  in  transitu 
and  it  was  stored  in  the  warehouses  of  the  defendants.  The 
assignee  of  the  bankrupts  having  brought  detinue,  the  defend- 
ants set  up  against  them  the  right  of  Menlove  &  Co. 

It  was  contended  on  the  part  of  the  plaintiff  that  by  delivery 
on  board  the  purchasers'  own  ship,  specially  appointed  for  the 
transportation  of  the  goods  in  question,  the  absolute  property 
vested  in  them,  more  especially  as  the  statement  in  the  bill  that 
the  goods  were  to  be  carried  freight  free,  "being  owners' 
property,"  was  inconsistent  with  the  property  remaining  in 
Menlove  &  Co.  It  was  further  contended  that  the  captain  had 
no  power  to  alter  by  his  statements  in  a  bill  of  lading  what 
would  otherwise  have  been  an  absolute  delivery  to  the  vendees. 
The  court  held,  however,  that  such  was  not  the  case,  the  terms 
of  the  bill  of  lading  effectually  reserving  to  the  consignors  the 
jus  disponendi.  "  There  is  no  doubt,"  said  the  court,  "  that  a 
delivery  of  goods  on  board  the  purchaser's  own  ship  is  a  de- 
livery to  him,  unless  the  vendor  protects  himself  by  special 
terms  restraining  the  effect  of  such  delivery.  In  the  present 
case  the  vendors  by  the  terms  of  the  bill  of  lading  made  the 
cotton  deliverable  at  Liverpool  to  their  order  or  assigns  and 
there  was  not,  therefore,  a  delivery  of  the  cotton  to  the  pur- 
chasers as  owners,  though  there  was  a  delivery  on  board  their 
ship.  The  vendors  still  reserved  to  themselves,  at  the  time  of 
delivery  to  the  captain,  the  jus  disponendi  of  the  goods,  which 
he,  by  signing  the  bill  of  lading,  acknowledged  and  without 
which  it  may  be  assumed  that  the  vendors  would  not  have 
delivered  them  at  all Whether,  as  the  cotton  was  actu- 
ally carried,  the  owners  of  the  ship,  as  such,  might  not  be  enti- 
tled to  freight  upon  a  quantum  meruit^  notwithstanding  the 
terms  of  the  bill  of  lading,  is  a  point  not  necessary  now  to 
determine,  but  with  respect  to  the  question  whether  the  plain- 
tiffs could  set  up  the  want  of  authority  in  the  master  as  a  ground 
for  contending  that  there  was  an  absolute  delivery  of  the  goods, 
so  as  to  vest  the  property  in  the  bankrupts  immediately  upon 
24  369 


g  489,]  BILLS   OF   LADING.  [CHAP.  XXXIV. 

delivery,  notwithstanding  the  special  terms  upon  which  they 
were  delivered  and  accepted  by  the  captain,  we  are  clearly  of 
the  opinion  that  it  is  not  competent  for  them  to  do  so.  The 
want  of  authority  of  the  master  to  accept  them  on  such  terms 
will  not  have  the  effect  of  vesting  the  property  in  the  bank- 
rupts. The  case  of  Mitchell  v.  Ede,  11  A.  &  E.  260,  is  a  strong 
authority  in  favor  of  the  defendants." 

§  489.  The  cardinal  principle  in  construing  instruments  of 
this  character  being  the  ascertainment  of  the  parties'  inten- 
tion, the  presumption  arising  from  this  form  of  the  bill,  that 
the  vendor  intended  to  retain  such  control  of  the  goods  as 
would  prevent  title  from  passing  to  the  vendee,  may  be  re- 
butted by  evidence  to  the  contrary.     JSTo  incontrovertible  legal 
effect  is  stamped  upon  the  transaction  by  the  use  of  such  a 
form.     The  question  is  one  of  fact,  not  of  law.     It  may  be 
sho\vn  before  a  jury  that  the  vendor  in  causing  the  bill  of 
lading  to  be  made  to  his  order  acted  merely  as  an  agent  for 
the  vendee.     It  was  admitted  by  the  Supreme  Court. of  the 
United  States  in  applying  the  ordinary  construction  in  the  case 
of  Dows  V.  The  National  Exchange  Bank,^  "  that  where  a  bill 
of  lading  has  been  taken  containing  a  stipulation  that  the 
goods  shipped  shall  be  delivered  to  the  order  of  the  shipper,  or 
to  some  person  designated  by  him  other  than  the  one  on  whose 
account  they  have  been  shipped,  the  inference  that  it  was  not 
intended  the  property  in  the  goods  should  pass,  except  by  sub- 
sequent order  of  the  person  holding  the  bill,  may  be  rebutted, 
though  it  is  held  to  be  almost  conclusive.     And  we  agree,"  con- 
tinued the  court,  "  that  w^here  there  are  circumstances  pointing 
both  ways,  some  indicating  an  intent  to  pass  the  ownership  im- 
mediately, notwithstanding  the  bill  of  lading — in  other  words, 
where   there   is   anything  to   rebut  the  effect  of  the  bill,  it 
becomes  a   question   for  the  jury  whether  the  property  has 
passed."     Thus,  it  may  happen,  as   in  the   case  of  Joyce  v. 
Swank,2  ^jj^t  a  bill  of  lading  is  taken  in  the   name  of  the 
shipper,  not  for  the  purpose  of  preventing  title  from  passing  to 
the  vendee,  but  merely  as  a  precautionary  retention  of  title  in 
view  of  uncertainty  as  to  the  vendee's  intention  to  accept  the 

>  1  Otto,  633.  2  17  C.  B.  N.  S.  83. 

370 


CHAP.  XXXIV.]      EVIDENCE    OF   TITLE    IN    CONSIGNEE.  [§  489. 

goods  upon  the  terras  offered.  In  that  case  MeCarter,  of  Lon- 
donderry, who  had  heen  in  the  custom  of  buying  largely  of 
Seagrave  &  Co.,  of  Liverpool,  ordered  of  the  latter  firm  100 
tons  of  guano.  Seagrave  &  Co.  wrote  in  answer :  "  We  have 
succeeded  in  fixing  the  schooner  Anne  and  Isabella  to  carry 
about  115  tons  at  your  limit.  We  presume  we  may  draw 
upon  you  at  six  months  from  the  date  of  the  shipment  at  10^. 
per  ton.  Please  say  if  you  purpose  effecting  insurance  at  your 
end."  MeCarter  replied,  referring  to  the  price:  " I  really  cannot 
understand  this,  when  I  know  that  Mr.  L.  supplies  your  guano 
in  Scotland  at  9^.  155.,  net,  there  to  dealers.  Beside,  I  look,  as 
heretofore,  for  the  special  allowance  made  to  me  at  the  origin 
of  our  transactions ;  and  now  that  you  are  making  some 
changes,  it  may  be  as  well  that  I  should  know  how  we  are  to 
get  on  for  the  future."  He  concluded  with  a  request  that  some 
flowering  shrubs  be  sent  him  "  in  charge  of  the  captain."  On 
the  day  before  writing  this  MeCarter  effected  an  insurance  on 
the  guano  with  the  plaintiff,  an  insurance  broker.  Seagrave 
&  Co.,  fearing  from  the  tenor  of  McCarter's  letter  that  he  would 
not  accept  the  cargo,  insured  it  in  their  own  names  and  took  a 
bill  of  lading  to  order  of  themselves  or  assigns.  They  made  out 
an  invoice  of  "guano  delivered  to  account  of  MeCarter,  by 
Seagrave  &  Co.,  per  Anne  and  Isabella,"  and  forwarded  it  with 
the  bill  of  lading  to  a  partner  then  in  Ireland.  The  latter  took 
these  papers  to  MeCarter,  who  expressed  his  willingness  to 
accept  the  cargo.  Two  days  afterward  the  bill  of  lading  was 
indorsed  to  MeCarter  and  he  accepted  a  draft  for  the  goods. 
On  the  same  day  news  was  received  of  the  loss  of  the  cargo  at 
sea  two  days  before.  The  underwriter  of  the  policy  of  insur- 
ance effected  by  the  plaintiff  on  behalf  of  MeCarter,  refused  to 
pay  the  same,  whereupon  this  action  was  brought.  The  de- 
fendant claimed  that  MeCarter  had  no  insurable  interest,  the 
title  not  having  passed  to  him. 

It  was  held,  however,  that  the  title  had  passed  to  MeCarter 
upon  the  shipment  of  the  goods,  his  letter  to  Seagrave  &  Co., 
with  regard  to  the  price,  not  being  a  repudiation  of  the  con- 
tract, but  a  "  grumbling  assent"  to  its  terms  and  such  being 
the  case,  the  mere  circumstance  that  the  bill  of  lading  was 
taken  in  the  name  of  the  vendor  and  remained  unindorsed  at 

371 


R  490.]  BILLS   OF   LADING.  [CHAP.  XXXIV. 

the.  time  of  the  wreck,  could  have  no  eifect  to  prevent  the  title 
from  passiiio;.  If  the  jury  thought,  said  the  court,  "that  not- 
withstanding this  there  were  other  circumstances  sufficiently 
cogent  to  induce  them  to  come  to  the  conclusion  that  the  prop- 
erty was  intended  to  pass,  I  am  of  opinion  that  the  mere  cir- 
cumstance of  the  form  of  the  bill  of  lading  and  of  the  invoice 
being  transmitted  to  the  partner  then  in  Ireland,  instead  of 
McCarter  direct,  was  not  sufficient  to  annihilate  the  other  evi- 
dence in  the  cause,  though  it  might  induce  the  jury  to  pause." 
The  contract  was  held  to  have  been  complete  and  the  plaintiff 
entitled  to  recover. 

§  490.  In  Hobart  v.  Littlefield,^  Morgan,  a  cotton  broker  of 
Providence,  at  the  request  of  the  defendants,  telegraphed  to  the 
plaintiff,  a  commission  merchant  at  Galveston :  "  Littlefield 
offers  lU  f.  o.  b.2  and  freight  for  fifty  bales ;  fill  part,  if  can't 
whole."  The  offer  was  a  few  days  afterward  accepted.  A 
few  days  after  the  acceptance  the  cotton  was  carried  to  the 
dock  of  the  steamship  line  by  which  it  was  intended  to  ship  it, 
a  bill  of  lading  being  given  shortly  after.  On  January  2Tth, 
the  day  after  the  issue  of  the  bill  of  lading,  the  plaintift'  wrote 
to  the  defendants,  notifying  them  of  the  purchase  and  inclosing 

an  invoice  of bales  of  cotton,  bought  for  account  and  risk 

of  defendants.  On  January  29th,  a  part  of  the  cotton  was 
burned  on  the  dock.  The  plaintiffs  brought  this  action  to 
recover  the  price  of  the  cotton  burned.  It  appeared  that  the 
bill  of  lading,  with  a  blank  indorsement,  was  attached  to  a 
sight  draft  and  sent  by  the  plaintiffs  to  a  bank,  to  collect  the 
one  and  deliver  the  other.  It  was  contended,  therefore,  by  the 
defendants  that  the  property  was  still  in  the  plaintifl''s  control 
at  the  time  of  the  fire  and  there  consequently  could  be  no  re- 
covery. The  court  held,  however,  that  the  property  had  passed  ; 
that  it  did  not  follow  from  the  fact  of  the  plaintiff'''s  control  at 
the  time  of  the  fire  that  the  title  and  risk  were  not  in  and  on 
the  defendants.  All  the  cases  upon  the  reservation  of  the  jus 
disponendi,  said  the  court,  hold  that  it  is  a  question  of  inten- 
tion, to  be  gathered  from  the  facts.  "  In  the  present  case  the 
title  might  pass  on  the  completion  of  the  bargain  and  the  selec- 

1  13  R.  I.  341.  2  u  pree  o^  board." 

372 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN   CONSIGNEE.  [§  491. 

tion  and  appropriation  of  the  cotton  to  that  purpose,  in  such  a 
manner  that  the  goods  would  be  at  the  buyer's  risk  and  yet 
the  seller  retain  possession  of  them,  by  himself  or  by  the  master, 
as  his  bailee  and  agent,  until  paid.  If  the  retention  of  the  bill 
of  lading  was  merely  to  retain  the  possession  of  the  cotton  for 
this  purpose,  then  the  title  and  the  risk  belonged  to  the  de- 
fendants. And  in  this  case  all  the  other  facts  tend  to  show  that 
the  vendors  at  least  considered  that  they  had  parted  with  the 
title  and  risk.  The  invoice  made  out  before  the  fire  was 
of  cotton  bought  by  E.  Hobart  &  Co.,  by  order  of  J.  Morgan, 
Esq.,  '  for  account  and  risk  of  Messrs.  Littlefield  Bros.'  " 

§  491.  Where  the  transaction  is  between  a  consignor  and 
a  consignee,  who  are  respectively  owner  and  factor  instead  of 
ordinary  vendor  and  vendee,  the  consignment  vests  title  in  the 
consignee  only  as  agent  of  the  shipper,  unless  he  be  the  latter's 
creditor  and  the  shipment  is  made  in  satisfaction  of  the  debt. 
Although  as  to  third  parties  with  whom  the  consignee  may 
deal  as  the  owner  of  the  goods,  he  may  be  treated  as  such 
owner  under  the  various  Factors'  Acts,  he  has,  as  against  his 
consignor,  only  such  a  special  property  as  is  necessary  for  ful- 
filling the  purposes  of  his  agency.  It  frequently  happens,  how- 
ever, that  there  is  a  debt  due  from  the  principal  to  his  factor 
and  that  the  latter  claims  title  to  a  cargo  by  virtue  of  his  fac- 
tor's lien.  Such  a  right  cannot  be  exercised  (unless  by  virtue 
of  an  express  or  implied  contract  to  the  contrary)  until  the 
property  comes  into  the  factor's  possession.^  The  possession  of  a 
bill  of  lading,  however,  indorsed  and  delivered  to  a  factor  having 
a  balance  of  account  in  his  favor,  is  for  this  purpose  equivalent  to 
actual  possession  of  the  goods,  where  it  clearly  appears  from 
the  circumstances  of  the  case  that  the  consignor  intended,  in 
delivering  the  goods  to  the  carrier,  to  vest  the  property  in  the 

'  Kinlock  v.  Craig,  3  T.  R.  786;  len  v.  Williams,  12  Pick.  297;  Win- 
Mitchell  V.  Ede,  11  Ad.  &  El.  888;  ter  w.  Cort,  7  N.  Y.  288;  Grosvenor 
Bruce  v.  Wait,  3  Mees.  &  W.  15;  v.  Phillips,  2  Hill,  147;  Woodruif  u. 
Clark  V.  Great  Western  Ry.  Co.,  8  N.  Nashville,  etc.,  R.  Co.,  2  Head 
C.  C.  P.  191;  Ryburg  v.  Snell,  2  (Tenn.),  87.  There  must  also  be  a 
Wash.  C.  C.  294 ;  First  Nat.  Bank  v.  right  of  property  in  the  goods  in  the 
Dearborn,  115  Mass.  219;  Bank  of  principal.  Tison  v.  Howard,  57  Ga. 
Rochester  v.  Jones,  4  N.  Y.  497;  Al-  410. 

373 


e  492.]  •  BILLS    OF   LADING.  [CHAP.  XXXIV. 

consio-nee.^  Where  payments  have  actually  been  made,  or  bills 
of  exchano:e  accepted,  upon  the  faith  of  consignments  to  be 
made  by  bill  of  lading,  a  consignment  in  pursuance  of  such  an 
arrangement,  whether  to  cover  a  general  balance  of  account  or 
an  advance  upon  the  particular  cargo,  will  be  construed  a  spe- 
cific appropriation  of  the  property  to  the  payment  of  the  con- 
sisrnor's  debt  and  the  factor's  possession  of  the  bill  of  lading 
will  be  considered  possession  of  the  goods.  To  defeat  his  pos- 
session, the  consignor's  creditors  have  no  greater  rights  than 
the  consio-nor  himself.^  The  claim  of  a  consignee  for  advances 
is  preferred  to  that  of  an  attaching  creditor,  when  the  former 
receives  the  bill  of  lading  previously  to  the  levy  of  the  attach- 
ment.' That  he  did  receive  it  before  the  levy,  must  appear 
affirmatively.* 

§  492.  It  is  necessary,  however,  to  bear  in  mind  the  distinc- 
tion between  transactions  in  which  the  parties  deal  in  the  rela- 
tion of  principal  and  factor  and  those  in  which  the  consignee, 
(though  he  has  previously  acted  as  simply  a  factor  and  ordi- 
narily sustains  that  relation  alone)  rises  by  virtue  of  such  a 
contract  as  that  under  consideration,  to  the  position  of  a  virtual 
vendee  of  the  goods.  In  such  a  case  the  principles  by  which 
the  passage  of  property  is  regulated  in  adjusting  the  respective 
claims  of  a  vendee  and  vendor  or  of  a  vendee  and  his  vendor's 
creditors,  are  applied  as  in  ordinary  cases.  Where  in  such 
cases,  therefore,  the  bill  of  lading  is  transmitted  to  the  con- 
signee and  there  are  no  circumstances  pointing  to  an  intention 
to  retain  control  of  the  title,  the  latter  vests  in  the  factor-con- 
signee immediately  upon  the  delivery  of  the  goods  to  the  carrier.* 

1  Rice   V.    Austin,   17    Mass.    197;  2  Adone  u.  Seeligson,  54  Tex.  593  ; 

Vall6  V.  Cerr§,  36  Mo.  575;  Davis  v.  Laughlin  v.  Gonahl,  11  Robinson,  140. 

Aubin,   24  Vt.   55  ;   Wade  v.   Hamil-  3  Vall6  v.  Cerre,  36  Mo.  575 ;  Park 

ton,   30  Ga.  450;   Haille  v.  Smith,  1  v.  Porter,  2  Robinson,  342. 

Bos.  &  Pul.   563;    Bryans  v.  Nix,  4  *  Hyde  ?>.  Smith,  12  La.  144. 

M.    &   W.   775;  Evans  v.  Nichol,  4  s  Grosvenor  u.  Phillips,  2  Hill,  147 ; 

Scott  N.   R.  43  ;   Vertue  v.  Jewell,  4  Holbrook  v.  Wright,  24  Wend.   169  ; 

Campbell,  31  ;   Cuming    v.  Brown,   9  Haille  v.  Smith,  1   Bos.  &  Pul.  563  ; 

East,  506;   Patten  v.  Thompson,  5  M.  Vertue   v.    Jewell,    4    Campbell,    31; 

&  S.   350.      Contra,  Oliver  v.  Moore,  Anderson  v.  Clark,  2  Bing.  20. 
12  Heiskell  (Tenn.),  482  ;  Saunders  v. 
Bartlett,  ib.  316. 

374 


CHAP.  XXXIV.]      EVIDENCE   OF   TITLE   IN   CONSIGNEE.  [§  492. 

As  was  said  by  Parke,  B'.,  in  Aryans  v.  Nix,i  "  If  the  inten- 
tion of  the  parties  to  pass  the  property,  whether  absolute  or 
special  in  certain  ascertained  chattels,  is  established  and  they  are 
placed  in  the  hands  of  a  depositary,  no  matter  whether  such 
depositary  be  a  common  carrier  or  shipmaster  employed  by 
the  consignor  or  a  third  person  and  the  chattels  are  so  placed  . 
on  account  of  the  person  who  is  to  have  that  property  and 
the  depositary  assents,  it  is  enough.  And  it  matters  not  by 
which  documents  this  is  effected ;  nor  is  it  material  whether 
the  person  who  is  to  have  the  property  be  a  factor  or  not ;  for 
such  an  agreement  may  be  made  with  a  factor  as  well  as  any 
other  individual." 

It  must  also  be  remembered,  however,  that  in  accordance 
with  the  principle  that  a  bare  consignment  will  not  in  itself 
constitute  the  consignee  an  owner,  a  shipper  who  has  not  com- 
pletely deprived  himself  of  the  jus  disponendi  may  prevent  the 
property  from  vesting  in  his  creditor  by  indorsing  the  bill  of 
lading  for  value  to  another,  even  where  the  shipment  has  been 
promised  to  the  consignee  in  satisfaction  of  the  latter's  advances. 

1  4  Mees.  &  W.  791. 

375 


494.] 


BILLS    OF   LADING. 


[CIIAP.  XXXV. 


CHAPTER   XXXV. 


THE  TRANSFER  OF  THE  BILL. 


The  bill  is  transferable  by  indorsement 
and  delivery,  §  493. 

Title  may  be  passed  by  other  modes 
of  assignment,  §  494. 

When  the  carrier  need  require  no  in- 
dorsement to  warrant  a  delivery, 
§495. 

Title  may  be  transferred  by  the  delivery 
of  the  bill  unindorsed,  §§  496,  497. 

The  same — English  authorities,  §§  498, 
499,  500. 


The  same — German  code,  §  501. 
The  delivery  must  be  with  an  intent  to 

pass  property  in  the  goods — When 

the  intention   is  a  question  for  the 

jury,  §§  502,  503,  504. 
Delivery  of  a  bill  containing  no  words 

of  negotiability,  §§  505,  506,  507. 
The  effect  of  a  transfer  varies  with  the 

intention,  §  508. 


§  493.  The  ordinary  and  proper  mode  for  the  transfer  of  a 
bill  of  lading  is  by  indorsement  and  delivery  to  the  party  for 
whose  benefit  the  transfer  is  intended.  What  rights  are  passed 
by  such  a  transfer,  is  a  distinct  question.  Such  rights  under 
the  bill  as  are  transferable  from  the  original  holder  to  another 
are,  however,  transferred  in  this  mode,  as  effectually  as  though 
the  holder  in  addition  to  making  the  indorsement  and  delivery 
had  entered  into  a  separate  contract  with  the  transferree  to 
convey  to  the  latter  all  the  rights  of  a  holder  of  the  bill.  Au- 
thorities need  not  be  cited  in  support  of  this  proposition,  since  it  is 
merely  equivalent  to  saying  that  the  bill  of  lading  is  quasi  negoti- 
able or  transferable,  a  principle  which  underlies  all  the  cases.^ 

§  494.  The  title  to  the  goods  may  of  course  be  passed  by  the 
owner  by  a  separate  instrument  or  by  an  independent  assignment 
indorsed  upon  the  bill,  as  well  as  by  the  ordinary  indorsement. 
Where  the  shipper  is  the  owner,  even  though  he  is  not  the 


1  In  The  Thames,  14  Wall.  98,  a 
case  in  point,  Mr.  Justice  Strong  re- 
ferred to  the  following  authorities  : 
Conrad  v.  Atlantic  Ins.  Co.,  1  Peters, 
445;  Gibson  r.  Stevens,  8  How.  384; 
Thompsons.  Downing,  14  Mees.  &  W. 

376 


403 ;  Caldwell  v.  Ball,  1  Term,  205 ; 
Wright  V.  Campbell,  4  Burrow,  2051  ; 
Evans  v.  Marlett,  1  Ld.  Raymond, 
271 ;  Walter  v.  Ross,  2  Wash.  C.  C. 
283. 


CHAP.  XXXV.]  TRANSFER   OF   THE    BILL.  [§  496. 

consignee  and  the  bill  of  lading  is  not  made  to  his  order,  he  may 
by  such  an  assignment  pass  a  title  to  the  goods  which  is  valid 
against  all  parties  except  a  bona  fide  indorsee  for  value  of  the 
bill  itself.  1 

§  495.  Where  a  bill  of  lading  is  presented  by  the  person  named 
therein  as  the  party  to  whom  the  goods  are  to  be  delivered  there 
is  no  necessity  for  an  indorsement.  In  such  a  case  the  delivery 
is  valid,  although  the  party  presenting  the  bill  is  the  holder  of 
only  the  second  of  a  set  of  bills  and  the  first  has  been  indorsed 
to  a  bona  fide  pledgee  for  value, — the  carrier  or  its  agents  not 
being  chargeable  with  notice  of  such  pledge.^ 

§  496.  A  valid  title  to  the  goods  specified  in  a  bill  of  lading 
may  be  acquired  by  the  delivery  of  the  bill  without  any 
indorsement  and  this,  whether  the  bill  be  drawn  to  the  con- 
signor's order,  or  to  bearer,  or  to  neither  order  nor  bearer.^ 
It  being  remembered  that  the  bill  is  regarded  as  symbolically 
the  goods  themselves,  it  necessarily  follows  that  a  delivery  of 
the  bill,  with  the  intention  of  passing  the  title,  ought  to  operate 
as  conclusively  to  effectuate  that  intention  as  the  manual  trans- 
mission of  the  goods  to  the  holder,  w^ere  such  transmission  pos- 
sible. The  modes  of  delivery  and  acceptance  in  effecting  a  sale 
or  pledge  of  personal  property  must  necessarily  vary  with  the 
nature  and  location  of  the  subject  of  the  sale.  The  ever-increas- 
ing complexity  and  rapidity  of  modern  commercial  transactions 
demand  that  muniments  of  title  to  personal  property  shall  pass 
easily  from  owner  to  owner,  unembarrassed  by  over-nice  legal 
technicalities.  The  law  accordingly  favors  the  doctrine  of  con- 
structive delivery  and  acceptance  and  where  it  finds  clear  evi- 
dence of  an  intention  to  pass  title  by  the  delivery  of  a  bill  of 
lading,  it  will  not  permit  that  title  to  be  invalidated  by  reason 
of  the  mere  omission  of  a  form.  It  will  require  neither  an  in- 
dorsement nor  any  other  written  assignment.* 

•  Conard  v.  Atlantic  Ins.  Co.,  1  indorsee,  it  seems,  is  a  sufficient  de- 
Pet-  445.  livery.    Buffington  u.  Curtis,  15  Mass. 

2   Glynn   v.  East   and  West    India  528. 

Docks  Co.,  L.  R.   7  App.  591.     See  ♦  Bank  of  Green  Bay  v.  Dearborn, 

Weyand  v.  Atchison,  etc.,  R.  Co.,  75  115  Mass.  219;   Bank  of  Rochester  v. 

Iowa,  573.  Jones,  4  N.  Y.  497;  Holmes  v.  Ger- 

»  Mailing  the  bill  addressed  to  the  man  Security  Bank,  87  Pa.  St.  525 ; 

377 


g  493,-]  BILLS   OF   LADING.  [CHAP.  XXXV. 

§  497.  In  the  Bank  of  Rochester  v.  Jones,^  the  possession  of  a 
carrier's  unindorsed  receipt  by  a  bank  which,  upon  obtaining  it, 
discounted  a  draft,  the  acceptance  of  which  it  was  intended  to 
secure,  was  held  sufficient  to  enable  the  bank  to  maintain  trover 
against  the  drawee,  who  refused  to  accept  and  obtained  posses- 
sion of  the  goods  by  illegally  detaching  and  retaining  the  receipt 
as  security  for  advances  upon  previous  consignments.  "The 
possession  of  the  carrier's  receipt,  although  not  indorsed  or 
formally  transferred,  was  evidence  to  the  carrier  that  the  bank 
was  entitled  to  possession  of  the  flour."  "  The  delivery  of  the 
carrier's  receipt  to  the  bank  was  a  symbolical  delivery  of  the 

flour." 

In  Holmes  v.  The  German  Security  Bank,^  a  bank  discounted 
a  draft  with  an  unindorsed  bill  of  lading  attached  as  security 
for  its  payment.  The  consignee  refused  to  pay  the  draft  and 
afterward  received  and  sold  the  property  and  applied  the  pro- 
ceeds to  a  previously  contracted  debt  of  the  consignor.  It 
was  held  that  the  bill  being  attached  to  the  draft  as  security 
for  the  payment  of  the  latter,  it  was  evidence  of  the  appro- 
priation of  the  proceeds  of  the  sale  of  the  property,  whether 
the  bill  was  indorsed  or  not  and  the  consignee  could  not,  there- 
fore, apply  them  to  an  old  debt  of  his  own.  This  case  was 
followed  in  Holmes  v.  Bailey.^ 

§  498.  Some  of  the  English  authorities  have  been  interpreted 
as  holding  that  an  indorsement  as  well  as  a  delivery  of  the  bill 
of  lading  is  necessary  in  order  to  pass  title  to  the  goods, — title 
being  passed  by  delivery  of  an   unindorsed   bill  only  where 

Holmes  v.  Bailey,  92  ib.  57;  Allen  Bush   (Ky.),    334;    Marine   Bank  v 

r.  Williams,  12  Pick.  297  ;  Becker  r.  Wright,    46    Barb.    45;    Fowler    v. 

Hallgartine,    86    N.    Y.    167  ;    Mer-  Meikleham,  7  Lower  Can.  367  ;  Glid- 

chants'  Bank  v.  Union  Railroad  Co.,  den  v.  Lucas,   7  Cal.  26;  City  Bank 

69  ib.  373;  Campbell  v.   Alford,    57  v.  Rome,   etc.,  R.  R.  Co.,  44  N.  Y. 

Texas,   159;    Michigan   Cent.  R.   R.  136 ;  Skilling  r.  Bollman,  6  Mo.  App. 

Co.  V.  Phillips,    60  111.   190;  Daven-  76.      The  rule  applies   to  warehouse 

port  Bank  v.  Homlyer,  45  Mo.  145  ;  receipts.     St.    Louis    Nat'l    Bank   v. 

Jeffersonville,  etc.,  R.  R.  Co.  v.  Ir-  Ross,  9  ib.  399. 
win,  46  Ind.   180;  Nathans  v.  Giles,         '  4  N.  Y.  497. 
5     Taunt.     558;     Cayuga    Bank     v.         2  §7  Pa.  St.  525. 
Daniels,    47    N.    Y.    631  ;    Pettit   v.         ^  92  ib.  57. 
First   National  Bank  of  Memphis,  4 

378 


CHAP.  XXXV.]  TRANSFER   OF   THE   BILL.  [§  499. 

actual  possession  of  the  property  has  been  obtained.  This  state- 
ment of  the  effect  of  those  cases,  however,  is  too  broad. 
They  by  no  means  go  to  the  length  of  holding  that  the  de- 
livery of  an  unindorsed  bill  of  lading,  with  the  intention  of 
passing  the  title  and  right  of  possession,  will  not  effectually  pro- 
duce the  desired  efiect  unless  possession  be  actually  obtained. 
They  determine  only  what  is  conceded  in  America  as  well,  that 
the  simple  delivery  or  transmission  of  a  bill  will  not  of  itself 
entitle  the  holder  to  the  goods  where  precedent  or  concurrent 
acts  of  the  shipper  or  owner  clearly  indicate  an  intention  to 
reserve  the  jus  disponendi^  or  to  retain  control  of  the  shipment 
until  certain  conditions  should  be  performed,  e.  g.,  until  bills 
of  exchange  drawn  against  the  goods  should  be  accepted  or 
paid. 

§  499.  Thus,  in  Brandt  v.  Bowlby,^  a  case  sometimes  cited  in 
support  of  the  statement  that  in  England  indorsement  of  the  bill 
is  necessary  to  pass  title,  one  Berkeley  gave  orders  to  the  plain- 
tiffs to  purchase  wheat  for  him.  The  plaintiffs  accepted  the 
orders,  but  Berkeley  subsequently  wrote  to  them  cancelling  the 
contract.  The  plaintiffs  wrote  to  Berkeley  that  they  had  made 
the  purchases  and  would  ship  the  wheat  addressed  to  H.  &  Co., 
expressing  the  hope  that  he  would  approve  of  what  they  had 
done  notwithstanding  his  last-mentioned  letter.  The  wheat  was 
shipped.  The  plaintiffs  informed  Berkeley  by  letter  that  they 
had  shipped  it  on  his  account  and  had  forwarded  an  indorsed  bill 
of  lading  to  H.  &  Co.,  drawing  upon  the  latter  for  a  part  of  the 
price  and  upon  him  for  the  residue.  They  inclosed  an  unindorsed 
bill  of  lading  to  Berkeley  and  an  invoice  of  the  w^heat  stating 
that  it  was  bought  for  his  order  and  on  his  account.  The  bills 
of  lading  were  not  accepted  and  the  plaintiffs'  agent  notified 
Berkeley  that  he  would  retain  the  whole  of  the  wheat  for  the 
plaintiffs.  Berkeley  afterward  again  became  desirous  of  hav- 
ing the  wheat  and  the  master  of  the  vessel  in  which  it  was 
shipped  delivered  it  to  his  order.  The  plaintiffs  brought  their 
action  against  the  ship-owners  for  not  delivering  the  wheat  to 
their  order  and  recovered.  There  is  in  the  decision,  however, 
no  trace  of  an  opinion  that  an  indorsement  is  necessary  where 

1  2  B.  &  Ad.  932. 

379 


§  502.]  BILLS    OF   LADING.  [CHAP.  XXXV. 

the  bill  is  delivered  with  an  intention  of  passing  title.  The 
decision  is  rested  solely  npon  the  ground  that  the  delivery  of 
the  bill  of  lading  to  Berkeley  was  conclusively  shown  by  the 
accompanying  acts  of  the  plaintiffs  to  be  without  such  inten- 
tion. The  correspondence  was  held  to  clearly  manifest  an  in- 
tention that  the  property  should  not  vest  in  Berkeley  until  the 
bills  of  exchange  were  accepted. 

§  500.  So,  in  Waite  v.  Baker,^  it  was  held,  not  that  title  could 
not  be  effectually  passed  by  delivering  an  unindorsed  bill  of 
lading  with  that  intention,  but  that  the  consignor's  mere  leav- 
ino;  of  an  unindorsed  bill  deliverable  to  order  or  assigns  of  the 
shipper,  at  the  office  of  the  contemplated  vendee,  would  not 
constitute  of  itself  such  an  appropriation  of  the  goods  "  in  that 
sense  of  the  term  which  alone  would  pass  the  property,"  where 
the  attendant  circumstances  indicated  clearly  an  intention  to 
reserve  control  of  the  goods. 

The  subject  of  reserving  the  jus  disponendi  as  affected  by  the 
issuance  of  bills  of  lading  is  examined  in  another  part  of  this 
treatise.  What  is  established  by  the  English  authorities  is  not 
in  conflict  with  the  rule  that  bills  of  lading  may  ordinarily  pass 
by  delivery  alone. ^ 

§  501.  It  was  decided  in  Becker  v.  Hallgarten,^  that  the  pro- 
vision of  the  commercial  code  of  the  German  Empire,  that  the 
transfer  of  legal  title  to  goods  covered  by  a  bill  of  lading  can 
be  made  only  by  written  indorsement  by  the  consignee,  applies 
only  w^hen  the  bill  is  taken  in  the  name  of  the  vendee  or  of 
some  person  through  whom  the  party  claiming  its  benefit  must 
make  title. 

•  §  502.  To  enable  the  party  to  whom  the  bill  of  lading  is  thus 
delivered  without  indorsement  or  other  assignment  to  claim  a 
general  or  special  property  in  the  goods  represented  thereby, 
there  must  of  course  have  been  a  delivery  with  the  intent  to 
pass  such  title.  Such  intention  is  shown  by  the  attendant 
circumstances.     It  is  usually  a  question  for  the  jury  and  there- 

^  2  Ex.  1.  simple   transfer   thereof  by   delivery, 

*  In  California  it  is  provided  by  stat-  conveys  the  same  title  as  an  indorse- 

ute  that  when  a  bill  of  lading  is  made  ment.     Civ.  Code,  §  2128. 

to  "bearer"  or  in  equivalent  terms,  a  ^  86  N.  Y.  167. 

380 


CHAP.  XXXV.]  TRANSFER    OF    THE    BILL.  [§  504. 

fore  in  an  appeal  to  a  higher  court,  it  is  to  be  assumed  that  the 
jury  has  passed  upon  it.^ 

Where,  however,  the  evidence  entirely  fails  to  disclose  any- 
thing more  in  the  transaction  in  which  the  bill  was  delivered 
than  a  mere  loan  to  the  owner  of  the  goods,  secured  by  the 
transfer  of  the  unindorsed  bill,  the  question  of  intention  is  of 
course  withheld  from  the  jury.  Such  a  delivery  of  unindorsed 
bills  as  mere  collateral,  passes  no  title  to  the  goods.^ 

§  503.  So  where  no  intent  to  pass  title  is  expressed  and  there 
is  no  fact,  such  as  the  payment  of  a  consideration,  from  which 
the  law  could  imply  such  an  intent,  the  mere  transmission  of  an 
unindorsed  bill  to  a  person  having  no  other  basis  for  his  claim 
to  the  goods  will  not  vest  in  him  any  title  to  them.  In  such 
a  case  the  delivery  of  a  part  of  the  goods  to  the  holder  of  such 
a  bill  will  not  estop  the  carrier  from  denying  the  holder's  claim 
to  the  residue.^ 

§  504.  A  delivery  alone  is  sufficient  not  only  where  the  bill 
is  drawn  to  the  consignee  "  or  order,"  but  (provided,  of  course, 
that  the  attendant  circumstances  evince  a  clear  intention  to  pass 
title  by  such  delivery),  where  upon  its  face  it  amounts  to  simply 
the  carrier's  receipt  and  contains  no  stipulation  for  the  delivery 
of  the  goods  to  any  party  but  the  one  to  whom  they  are  con- 
signed. The  mere  omission  of  words  of  negotiability  from  an 
instrument  which  by  its  nature  and  intent  is  quasi-negotiable, 
cannot  render  it  non-negotiable  and  being  negotiable  to  the 
same  extent  as  similar  instruments  containing  such  words,  there 
can  be  no  reason  why  it  should  not  be  to  the  same  extent  nego- 
tiable by  delivery. 

In  Bank  of  Green  Bay  v.  Dearborn,*  the  plaintiff  had  dis- 
counted a  draft  drawn  against  a  quantity  of  flour  and  its  title 
depended  upon  a  carrier's  receipt  delivered  to  it  by  the  con- 
signor without  any  written  indorsement  and  containing  no 
words  of  negotiability.  The  consignees  refused  to  receive  the 
goods  upon  their  arrival  at  their  destination  and  notified  a 
creditor  of  the  consignor  that   they  had   no  claim  to  them, 

1  Merchants'  Bank  v.  Union  Rail-  2  Bissell  v.  Steel,  67  Pa.  St.  443. 

road   Co.,    69    N.    Y.    373;    Cayuga  »  Stone  u.  Swift,  4  Pick.  389.- 

Bank  v.  Daniels,  47  ib.  631;  Bailey  v.  ■*  115  Mass.  219. 
Hudson  River  Railroad  Co.,"  49  ib.  70. 

381 


§  505.]  BILLS   OF   LADING.  [CHAP.  XXXV. 

whereupon  the  creditor  attached  the  goods  as  the  property  of 
the  consignor.  The  discounting  bank  brought  replevin  against 
the  attacliiuo-  officer.  The  court  held  that  the  delivery  of  the  bill 
of  lading  vested  a  valid  title  to  the  goods  in  the  bank  and  gave 
it  a  right  to  maintain  the  action,  Mr.  Justice  Ames  saying,  "It 
is  true  that  a  receipt  of  this  kind  does  not  purport  on  its  face  to 
have  the  quasi-negotiable  character  which  is  sometimes  said  to 
belong  to  bills  of  lading  in  the  ordinary  form ;  neither  does  it 
purport  in  terms  to  be  good  to  the  bearer.  But  independently 
of  any  indorsement  or  formal  transfer  in  writing,  the  possession 
and  production  of  it  would  be  evidence  indicating  to  the  car- 
rier that  the  bank  was  entitled  to  demand  the  property,  and 
that  he  would  be  justified  in  delivering  it  to  them.  There  are 
cases  in  which  the  delivery  of  a  receipt  of  this  nature,  though 
not  indorsed  or  formally  transferred,  yet  intended  as  a  transfer, 
has  been  held  to  be  a  good  symbolical  delivery  of  the  property 
described  in  it.  In  Haille  v.  Smith,^  Eyre,  C.  J.,  uses  this 
language :  '  I  see  no  reason  why  we  should  not  expound  the 
doctrine  of  transfer  very  largely  upon  the  agreement  of  the 
parties,  and  upon  their  intent  to  carry  the  substance  of  that 
agreement  into  execution.'  " 

§  505.  The  Bank  of  Green  Bay  v.  Dearborn'^  has  met  with  what 
would  seem  to  be  an  adverse  criticism  in  a  later  Massachusetts 
case,  Hallgarten  v.  Oldham.'  In  that  case  the  contest  was  be- 
tween the  pledgee  of  a  warehouse  receipt  and  an  attaching 
creditor  of  the  pledgor.  The  receipt  contained  a  promise  to 
"deliver  to  him,"  the  owner,  upon  the  payment  of  charges, etc. 
It  was  indorsed  in  blank  by  the  pledgor  and  delivered  to  the 
plaintitl'.  l!^o  notice  of  this  was  given  to  the  warehouseman 
by  the  plaintiff  until  after  the  levy  of  the  defendants'  attach- 
ment. The  court  held  that  enough  had  not  been  done  to  give 
the  plaintiff  a  valid  title  against  the  attaching  creditor,  since 
the  delivery  or  change  of  possession  required  by  the  case  of 
Lanfear  v.  Sumner,^  in  a  case  like  that  under  consideration, 
where  the  goods  were  in  the  hands  of  a  middleman,  "  could 
only  be  brought  to  pass  by  his  becoming  the  servant  of  the 
purchaser   for  the  purpose  of  holding  the  goods;"   that  the 

'  1  B.  &  P.  563.      •  '  135  ib.  1. 

«  115  Mass.  219.'  *  17  ib.  110. 

382 


CHAP.  XXXV.]  TRANSFER   OF   THE   BILL.  [§  506. 

middleinan  could  become  such  only  by  his  own  consent ;  that 
"  it  may  or  may  not  be  true  that,  if  a  warehouse  receipt  con- 
tains an  undertakinp;  to  deliver  to  order,  that  undertaking  is  to 
be  regarded  as  an  ofl'er  by  the  warehouseman  to  any  one  who 
will  take  the  receipt  on  the  faith  of  it,  and  that  it  will  make 
him  warehouseman  for  the  indorsee  without  more,  on  ordinary 
principles  of  contract;"  but  that  as  the  warehouse  receipt  under 
consideration  contained  no  such  undertaking,  the  warehouse- 
man could  not  be  considered  to  have  attorned  by  the  mere 
indorsement  and  delivery  to  the  plaintiff.^ 

The  court,  by  Mr.  Justice  Holmes,  said:  "  It  is  true  there  are 
one  or  two  decisions  of  this  court  which  it  is  somewhat  hard  to 
reconcile  with  the  foregoing  principles.  The  strongest  of  these 
is  Green  Bay  National  Bank  v.  Dearborn."  .  ..."  It  will  be 
observed  that  the  document  [in  the  latter  case]  did  not  run  to 
order,  and  was  not  indorsed,  so  that  it  could  not  be  argued  that 
the  railroad  company  had  attorned  in  advance,  and  there  was  no 
notice  to  the  company,  so  that  it  had  not  made  itself  the  plaintiff's 
bailee  subsequently,  if  ordinary  principles  were  to  be  applied." 
"  But  whatever  the  scope  of  Green  Bay  ISTational  Bank  v. 
Dearborn,  we  cannot  apply  it  as  a  precedent  in  the  present 
case,  so  long  as  Lanfear  v.  Sumner  stands.  When  a  private 
warehouseman,  who  has  an  unfettered  right  to  choose  tlie  per- 
sons for  whom  he  will  hold,  gives  a  receipt  containing  only  an 
undertaking  to  his  bailor  personally,  without  the  words,  "  or 
order,"  or  any  other  form  of  offer  or  assent  to  hold  for  any  one 
else,  it  is  impossible  to  say  that  a  mere  indorsement  over  of 
that  receipt  will  make  him  bailee  for  a  stranger." 

§  506.  Language  so  positive  as  this  would  seem,  indeed,  to 
amount  to  a  rejection  of  the  principle  of  the  case  criticised. 
Hallgarten  v.  Oldham^  is  believed  to  be  the  latest  case  upon 
this  subject  in  Massachusetts.  It  is  submitted  however  that 
of  the  two  cases,  that  first  decided  contains  the  more  intelli- 
gently and  liberally  reasoned  conclusion  and  that  the  narrow 

^  There  is  also  a  dictum  in  the  case  as  '  or  order  or  assigns'  ought  to  be  in 

of  Henderson  v.  The  Comptois  d'Es-  them,"  such  being  "the  general  view 

compte  de  Paris,  L.  R.   5  P.  C.  260,  of  the  mercantile  world  for  some  time."' 
to  the  effect  that  "  in  order  to  make        ^  135  Mass.  1. 
bills  of  lading  negotiable,  some  words 

383 


I  508.]  BILLS    OF   LADING.  [CHAP.  XXXV. 

rule  of  the  last  is  inconsistent  with  the  general  modern 
view  of  the  doctrine  of  transfer.  It  should  be  added  that  in 
deciding  Hallgarten  v.  Oldham^  the  court  was  guided,  not 
altogether  bj  what  it  there  enunciated  as  rules  of  common  law, 
but  by  the  provisions  of  the  Massachusetts  statute  relating  to 
warehouse  receipts.  The  court  concluded  its  opinion  by  saying, 
"We  are  confirmed  in  the  view  we  take  by  observing  that  the 
legislature,  in  dealing  with  public  warehousemen,  and  providing 
that '  the  title  to  goods  stored  ....  shall  pass  to  a  purchaser  or 
pledgee  by  the  indorsement  and  delivery  to  him  of  the  ware- 
houseman's receipt,'  as  a  preliminary  to  that  result  expressly 
requires  that  the  receipt  'shall  be  negotiable  in  form.'" 

§  507.  Hallgarten?;.  01dham,=^  indeed,  does  not  militate  against 
the  general  principle  that  an  ordinary  quasi-negotiable  bill  of 
lading  or  warehouse  receipt  may  be  validly  transferred  by 
delivery  alone,  for  the  question  there  arose  upon  an  instru- 
ment that  was  not  only  delivered  but  indorsed.  The  real 
question  was  not  as  to  the  mode  of  negotiating  the  instru- 
ment, but  as  to  its  negotiability  in  any  mode,  when  words  of 
negotiability  are  absent.  The  case  has  been  noticed  at  this 
point,  however,  because  it  has  seemed  to  overthrow  a  distinct 
decision  of  the  point  that  if  a  bill  of  lading  or  warehouse 
receipt  is  negotiable  at  all,  it  is  negotiable  by  a  delivery  alone 
with  an  intent  to  thereby  pass  title. 

§  508.  The  effect  of  the  indorsement  and  delivery  of  a  bill  of 
lading  varies  according  to  the  intention  of  the  parties.  It  con- 
sequently renders  the  bill  a  muniment  of  various  kinds  of  title  : 
absolute,  defeasible,  special,  conditional,  or  merely  formal, 
since  the  intention  may  be  either  to  pass  the  whole  property  in 
goods  already  paid  for;  to  pass  that  property  subject  to  an  un- 
paid vendor's  right  to  assert  his  lien  for  the  price  by  stopping 
the  goods  in  transit;  to  create  a  mortgage  or  pledge  of  the 
goods  as  security  for  an  advance;  to  pass  a  title  which  shall 
become  absolute  only  on  the  performance  of  certain  conditions, 
usually  the  acceptance  or  payment  of  drafts  for  the  price,  or 
to  pass  only  such  a  merely  apparent  title  as  would  enable  an 
agent  to  sell  the  goods  or  stop  them  in  transit.  These  subjects 
are  treated  elsewhere,  in  their  appropriate  places. 

^  135  Mass.  1.  2  lb. 

384 


CHAP.  XXXVI.] 


COLLATERAL    SECURITY. 


[§  509. 


CHAPTER  XXXVI. 


THE  BILL  OF  LADING  AS  A  COLLATERAL  SECURITY, 


Character  of  the  pledgee's  title,  §§509, 
510. 

Pledgee  has  such  property  as  will 
enable  him  to  maintain  replevin, 
§511. 

Pledgee's  title  is  paramount  to  the 
right  of  stoppage  in  transitu,  §  512. 

No  title  passes  unless  the  bill  is  de- 
livered, §  513. 

Forwarding  a  bill  attached  to  a  draft 
for  the  price  of  goods  is  not  neces- 
sarily a  delivery  to  the  party  dis- 
counting the  draft,  §§  514,  515. 

Pledgee's  rights  are  paramount  to  those 
of  a  consignee,  §§  516,  517. 

Pledgee's  rights  are  paramount  to  those 
of  a  consignee  to  whom  the  consignor 
is  indebted  beyond  the  value  of  the 
goods,  §  518. 

Agreements  between  a  consignor  and  a 
consignee  that  the  shipment  shall  be 
appropriated  to  the  payment  of  the 
former's  debt  are  immaterial,  §  519. 

Consignee's  ignorance  of  the  pledge 
is  immaterial,  §  520. 

Pledgee's  title  is  conditional,  §  521. 


The  same — whether  the  transaction  is 
a  mortgage  or  a  pledge,  is  immate- 
rial, §  522. 

The  pledgee's  title  defeated  by  ac- 
ceptance rather  than  payment  of 
the  draft,  §§  523,  524. 

The  rule  holds  where  the  draft  has 
been  sent  to  an  agent  for  collection, 
§§  525,  526. 

The  bill  may  be  made  security  for  the 
payment  by  express  agreement, 
§527. 

Consignee  cannot  claim  possession  un- 
til he  accepts  or  pays  the  draft, 
§  528. 

Pledgee  is  liable  in  damages  for  a  re- 
.  fusal  to  deliver  upon  the  consignee's 
acceptance  or  payment  of  the  draft, 
§529. 

Pledgee's  right  is  not  divested  by  the 
consignee's  obtaining  possession  of 
the  goods  without  acceptance  or 
payment  of  the  draft,  §  530. 

Nor  by  the  consignee's  own  delivery 
of  the  goods  where  in  trust  for  the 
redemption  of  the  pledge,  §  531. 


§  509.  Bills  of  lading  are  frequently  transferred  where  the 
transaction  is  not  intended  to  give  permanent  ownership,  but 
to  furnish  security  for  advances  made  upon  the  faith  of  the 
transfer.  Few  transactions  in  the  commercial  world  are  more  fre- 
quent than  the  transfer  of  bills  of  lading  as  collateral  security 
25  385 


§  510.]  BILLS   OF   LADING.  [CHAP.  XXXVI. 

to  a  bank  or  other  pledgee  making  an  advance  upon  the  credit 
of  the  pledgor's  ownership  therein  indicated.  It  has  become 
the  customary  mode  of  purchase  and  sale  between  parties  who 
require  the  services  of  a  carrier  for  delivery,  for  the  consignor 
to  draw  a  draft  for  the  price  upon  the  consignee,  which,  with 
the  bill  of  lading  attached,  or  accompanying  it,  he  procures  to 
be  discounted  by  a  bank  or  private  capitalist.  The  latter  holds 
the  bill  of  lading  as  security  for  the  consignee's  acceptance  or 
payment  of  the  draft  through  the  holder's  agent  at  the  termi- 
nal point  of  the  transit  and  delivers  it  to  the  consignee  upon 
such  acceptance  or  payment.  In  some  cases  a  pledge  is  created 
by  the  consignee's  delivering  the  bill  of  lading  to  a  bank  as 
security  for  a  loan  by  the  latter  for  the  payment  of  the  purchase 
price. 

§  510.  Such  a  transfer  of  the  bill  of  lading  is  a  pledge  of  the . 
goods  themselves  and,  unless  circumstances  indicative  of  a  differ- 
ent intention  appear,  it  constitutes  prima  facie  evidence  of  an 
intention  to  pass  to  the  pledgee  a  title  to  the  goods  which 
shall  protect  him  to  the  extent  of  his  advances  upon  them. 
Unless  a  different  agreement  is  expressly  made,  the  pledge  will 
be  construed  as  intended  to  protect  the  pledgee  only  until  he 
has  been  placed  in  possession  of  another  security,  namely,  the 
accepted  draft  for  the  price.      The  character  of  the  pledgee's 
title  in  such  a  transaction   has   sometimes  been  inaccurately 
stated.     Language  has  been  used  which  would  seem  to  indicate 
an  opinion  that  such  a  pledgee  is  clothed  with  the  same  com- 
plete and  absolute  legal  ownership  as  an  actual  proprietor  of 
the  goods.    That  such  is  not  the  case  follows  from  the  principle 
already  discussed,  that  a  trausferree  of  a  bill  of  lading  has  only 
such   property   in    the  goods   as   was   within    and   necessary 
to   effectuate,  the  intent  of  the  transfer.      It   is  nevertheless 
true  and  strictly  in  accordance  with  such  principle,  that  no 
distinction   is  observed  between  the   rights   of  one   to  whom 
such  a  bill  is  transferred  as  collateral  and  those  of  an  actual 
purchaser  of  the  goods,  so  far  as  the  exercise  of  those  rights 
is  necessary   for  the  holder's   self-protection.      So  far  as   it 
is  necessary  to  afford  and  enforce  this  protection,  the  pledgee 
holds  the  legal  title  to  the  goods  and  is  entitled,  in  respect 
386 


CHAP.  XXXVL]  collateral    SECURITY.  [§  513. 

of  them,  to  all  the  rights  and  remedies  of  a  purchaser  for 
valiie.^ 

§  511.  Accordingly,  one  who  holds  a  bill  of  lading  as  col- 
lateral security  for  an  advance  is  entitled  to  maintain  an  action 
of  replevin  to  recover  them  from  an  officer  who  has  attached 
them  at  the  suit  of  the  shipper  or  any  one  claiming  under  him. 
Although  the  delivery  of  the  bill  of  lading  to  a  bank  or  other 
party  as  security  for  the  payment  of  advances  may  not  enable 
the  pledgee  to  sue  the  carrier  upon  the  contract  made  with  the 
shipper,  it  nevertheless  creates  such  a  special  property  in  the 
goods  as  will  entitle  the  pledgee  to  immediate  possession  and 
enable  him  to  obtain  it  by  replevin.^ 

§  512.  A  bona  fide  holder  of  a  bill  of  lading  as  collateral 
security  has  a  title  to  the  goods  which  is  paramount  to  the 
unpaid  vendor's  right  of  stoppage  in  transitu.  His  right  is 
the  same  whether  the  consideration  for  the  transfer  of  the  bill 
passed  at  the  time  of  the  transfer  or  was  the  payment  of  an  ante- 
cedent debt.  A  discussion  of  this  subject  will  be  found  in  the 
succeeding  chapter. 

§  513.  The  question  may  arise,  whether  a  pledgee's  title  to 
the  goods  specified  in  a  bill  of  lading  must  be  created  by  a  par- 
ticular mode  of  transfer.  The  general  subject  of  transferring 
title  has  been  considered  and  it  has  been  seen  that  in  general  a 
valid  transfer  may  be  made  by  the  indorsement  and  delivery  of 
the  bill,  or  by  its  simple  delivery  without  indorsement.  In 
the  case  of  a  pledgee,  as  in  any  other,  it  is  absolutely  neces- 
sary that  there  shall  be  a  delivery  of  the  bill.  If  there  be  no 
delivery  of  the  bill,  one  who  discounts  a  draft,  expecting  a 
future  delivery  of  the  bill  and  relying  upon  it,  nevertheless 
obtains  no  title  to  or  lieu  upon  the  goods,  although  the  draft 
contains  upon  its  face  a  memorandum  that  it  is  drawn  "  against" 
the  goods  and  although  the  consignee  to  whom  the  bill  is  sent 

1  Dows  y.  National  Exchange  Bank,  PfeifFer,  22  Hun,  327;    Marine  Bank 

1  Otto,  618;  Tilden  v.  Minor,  45  Vt.  v.  Wright,  48  N.  Y.  1  ;  Allen  v.  Wil- 

195;  Farmers   and  Mechanics'  Bank  Hams,  12  Pick.  397;  Marine  Bank  ?;. 

V.  Logan,   74    N.    Y.   568;  Petitt  v.  Fiske,  71  N.  Y.  353. 
First  National   Bank  of  Memphis,   4         "  Fifth  Nat.   Bank  v.  Bayley,   115, 

Bush,  334 ;  First  Nat.  Bank  v.  Kelly,  Mass.   228  ;    Sank  of  Green  Bay  v. 

57  N.   Y.   34;  Commercial   Bank  v.  Dearborn,  ib.  219. 

387 


§  515.]  BILLS   OF   LADING.  [CIIAP.  XXXVI. 

is  notified  by  the  consignor  that  the  draft  was  drawn  upon  the 
security  of  the  goods.*  In  such  a  case  the  party  discounting 
the  draft  can  maintain  no  action  against  the  consignee  and  of 
course  no  right  of  recovery  is  created  by  a  subsequent  delivery 
of  a  duplicate  bill  of  lading. 

§  514.  That  there  must  be  a  delivery  of  the  bill  to  the  pledgee 
is  settled  beyond  doubt.  The  further  question  remains,  What 
constitutes  a  delivery  ?  Whether  or  not,  when  a  bill  of  lading 
is  sent  with  a  draft  for  the  price  of  the  goods  to  the  pur- 
chaser, the  bill  is  intended  to  be  delivered  to  the  party  dis- 
counting the  draft  and  retained  by  him  as  security  for  pay- 
ment, rather  than  to  the  purchaser,  is  a  question  of  intention 
and  is  in  substance  the  question,  whether  the  pledgee's  title  is 
defeated  by  payment  of  the  draft  or  by  acceptance.  It  is  a 
question  of  intention  which  must  be  answered  by  reference  to 
some  express  agreement  of  the  parties;  to  their  previous  course 
of  dealing;  or  to  the  existence  of  a  well-settled  usage  of  trade 
which  is  recognized  and  acted  upon  in  both  of  the  places  be- 
tween which  the  transaction  takes  place. 

§  515.  It  was  laid  down,  however,  in  Mears  v.  Waples^  that 
the  bare  fact  that  a  bill  of  lading  is  forwarded  attached  to  a 
draft  and  not  separately,  does  not,  unless  by  virtue  of  a  par- 
ticular or  general  usage,  necessarily  indicate  an  intention  to 
make  the  bill  of  lading  a  security  for  the  payment  of  the  draft. 
The  draft  and  the  bill  of  lading  are  not  in  such  a  case  in  any 
sense  a  single  instrument  in  law.  "■'  On  the  latter  point,"  said 
the  court,  "it  must  be  clear  that  the  mere  connection  of  the 
two  papers  by  a  pin  could  not  alter  the  legal  operation  of 
either  instrument.  The  operation  of  each  depended  only  upon 
its  own  terms ;  nor  could  they  be  made  in  any  sense  one  in- 
strument, or  the  operation  of  one  be  qualified  by  the  other, 
except  by  some  reference  in  the  one  to  the  other ;  as  if  in  the 
bill  of  lading,  for  example,  it  had  been  provided  that  the  title 
under  it  to  the  cargo  should  not  pass  until  payment  of  the 

^  Exchange  Bank  !'.  Rice,  107  ]Mass.  Shaw,    32    Fed.    Rep.    491;    Batavia 

37.  Bank  v.  X.  Y.,  L.   E.,  etc.,   R.  Co., 

*  Mears     v.    Waples,     4     Houston  106  N.  Y.  195. 
(Del.),  62.     See  also  The  John  K. 

388 


CHAP.  XXXVI.]  COLLATERAL    SECURITY.  [§  516. 

draft.     Then,  again,  with  respect  to  the  coiickisiveness  of  this 
fact  (the  connection  of  the  two  papers)  in  itself  as  evidence 
of  an  intention  to  pledge  the  bill  of  lading  for  payment,  while 
It  is  doubtless  true  that  the  papers  were  connected  for  some 
purpose,  it  is  not  to  be  assumed  that  this  purpose  was  to  make 
the  bill  a  security  for  payment  of  the  draft,  for  the  object  may 
as  well  have  been  to  make  the  delivery  of  the  bill  and  the 
acceptance  of  the  draft  contemporaneous,  so  as,  on  the  one 
hand,  to  secure  the  vendor  an  acceptance  of  the  draft  before 
delivery  of  the  bill  of  lading,  and,  on  the  other  hand,  to  assure 
the  acceptor  that  the  goods  had  gone  forward."     In  this  case 
it  was  held  that  the  other  circumstances  pointed  to  a  sale  not 
for  cash,  but  on  the  personal  credit  of  the  purchaser,  to  be  se- 
cured by  the  bill  of  lading.     It  is  to  be  observed,  however, 
that  where  a  custom  is  proved  that  a  bill  of  lading,  when  at- 
tached to  a  draft  for  the  price  of  goods  shipped,  stands  as  se- 
curity for  the  payment  of  the  draft,  the  bill  will  be  so  treated. 
In  Mears  v.  Waples^  it  was  decided  merely  that  in  that  case 
such  a  custom  had  not  been  proved,  either  in  the  trade  gene- 
rally or  in  the  dealings  of  the  parties.     In  the  latter,  on  the 
contrary,  it  appeared  that  in  a  considerable  course  of  previous 
transactions  the  bill  had   in  every  case  been  detached.     The 
court  tacitly  recognized,  however,  the  existence  of  a  mercantile 
usage  needing  no  proof  that  the  bill  of  lading  shall  in  such  case 
stand  as  security  for  at  least  the  acceptance  of  the  draft  and 
that  the  forwarding  of  the  bill  and  draft  together  in  the  man- 
ner indicated  constituted  a  delivery  of  the  bill  for  that  purpose. 
§  516.    One  to  whom  a  bill  of  lading  has  been  pledged  by  a 
consignor  as  collateral  security  for  the  discount  of  a  draft,  or 
an  advance  otherwise  made  upon  the  security  of  the  goods, 
obtains  a  valid,  though  conditional,  title  to  the  goods,  not  only 
as  against  the  consignor,  but  as  against  the  consignee.     The 
fact  that  a  certain  person's  name  has  be.en  inserted'in  the  bill 
can  have  in  itself  no  effect  in  transferring  to  them  property  in 
the  goods,  for  no  title  passes  under  a  bill  until  it  is  delivered. 
The  insertion  of  the  name  is  made  in  the  case  of  a  pledge  as 
collateral  for  the  discount  of  a  draft  drawn  against  the  goods 
merely  in  the  expectation  that  the  party  named  will  entitle 

'  4  Houston  (Del.),  62. 

389 


§  518.]  BILLS   OF   LADING.  [CHAP.  XXXVI. 

himself  to  possession  of  the  goods  according  to  the  terms  of  the 
contract  by  accepting  the  draft.^ 

A  simple  consignment  of  goods  may  be  explained  by  parol 
to  have  been  intended  as  evidence  of  an  absolute  sale,  a  trust,  a 
mortgage,  a  pledge,  or  a  mere  agency.  "There  is  nothing  final 
or  irrevocable  in  its  nature.  The  owner  of  the  goods  may 
change  his. purpose  at  any  rate  before  the  delivery  of  the  goods 
themselves,  or  of  the  bill  of  lading,  to  the  party  named  in  it, 
and  may  order  the  delivery  to  be  to  some  other  person." ^ 
When  the  bill  is  made  deliverable  to  the  order  of  the  shipper, 
there  can  be  no  question  of  his  intention  to  preserve  the  jus 
disjjonmdi ;  nor  when  the  consignment  is  merely  to  the  ship- 
per's agent.  So  where  the  bill  is  made  deliverable  to  a  vendee 
or  bearer.'  In  any  case  the  simple  appearance  of  a  consignee's 
name  in  the  bill  gives  to  him  no  right  to  the  goods  which  can 
be  asserted  against  the  superior  equity  of  a  bona  fide  advance  to 
the  consignor  upon  the  security  of  the  bill. 

§  517.  The  pledgee  may,  however,  waive  his  rights,  or  be 
guilty  of  such  negligence  as  to  defeat  them.  Thus,  in  Douglass 
V.  People's  Bank,*  a  bank  was  in  the  habit  of  permitting  the 
pledgor  to  withdraw  bills  and  substitute  others  for  the  purpose  of 
allowing  the  pledgor  to  obtain  the  freight.  The  pledgor  with- 
drew certain  bills,  presented  them  to  the  carrier,  obtained  the 
freight  and  returned  them  to  the  bank.  The  court  held  that 
the  carrier  was  not  liable  therefor  to  the  bank. 

§  518.  This  is  true,  though  the  consignor  be  indebted  to  the 
consignee  upon  general  account  in  a  sum  greater  than  the  value 
of  the  goods.'    Thus,  in  The  Bank  of  Rochester  v.  Jones,®  the 

'  First   National  Bank  of  Cairo  v.  888;  Conard  v.  Atlantic  Ins.   Co.,   1 

Crocker,    111   Mass.    163;    Bank    of  Peters,  444. 

Rochester  v.  Jones,  4  N.  Y.  497  ;   Al-  3  Allen  v.  AVilliams,   12  Pick.  297. 

len  r.  Williams,  12  Pick.  297;   Pratt  *  Am.  and  Eng.  R.  Cases,  510,  S. 

V.    Parkmann,    24  ib.   42 ;    Taylor  v.  C.  ;   5  Southwest  Rep.  420. 

Turner,  87  HI.  296  ;   Batavia  Bank  v.  «  -Q.^i^  of  Rochester  v.  Jones,  4  N. 

N.  y.,  L.  E.,  etc.,  R.  R.  Co.,  106  X.  Y.  497;  Allen  i-.  Williams,  12  Pick. 

Y.  195;   Boatman's  Savings  Bank  v.  297;    First   Nat.    Bank    of   Cairo   v 

West.,    etc.,   R.    Co.,   81   Ga.,     221;  Crocker,  111  Mass.  163  ;  Wilmerding 

Chester  Nat.    Bank  v.  Atlanta,  etc.,  v.  Hart,  Hill  &  Denio  (Suppl.),  305. 

R.  Co.,  25  S.  C.  216.  e  4  N.  Y.  497. 

*  Mitchell   V.   Ede,  11  Ad.  &  Ell. 

390 


CHAP.  XXXVI.]  COLLATERAL  SECURITY.  [§  519. 

owner  of  a  quantity  of  flour  consigned  it  to  the  defendant,  Jones, 
who  was  his  regular  factor.  He  drew  a  draft  upon  Jones  for  the 
price  and  obtained  a  discount  of  the  draft  from  the  plaintiff  upon 
delivering  to  it  the  bill  of  lading  and  agreeing  that  it  should 
hold  the  bill  as  security  for  Jones'  acceptance  of  the  draft. 
Upon  presentation  of  the  latter  Jones  refused  to  accept,  de- 
tached the  bill  from  the  draft,  retained  it  and  thereby  ob- 
tained possession  of  the  goods,'the  proceeds  of  which  he  claimed 
the  right  to  apply  to  advances  made  by  him  to  the  shipper  on 
previous  consignments.  The  bank  was  held  entitled  to  recover 
against  Jones  in  an  action  of  trover, — the  defendant  having  ac- 
quired by  the  consignment  no  right  to  the  flour  except  upon 
condition  of  accepting  the  draft.  Having  refused  to  accept, 
he  became  a  wrong-doer  by  taking  and  converting  the  flour. 

§  519.  Even  where  the  consignors,  having  overdrawn  their 
account  with  the  factor,  have  expressly  promised  to  "  make  it 
all  right  at  the  next  shipment,"  the  consignee  does  not  ob- 
tain thereby  an  absolute  title  to  goods  forwarded  at  the  next 
shipment.  Where  a  draft  has  been  drawn  against  the  ship- 
ment and  discounted  in  the  usual  manner,  the  consignee  is  in 
no  better  position  than  if  the  promise  had  not  been  made. 
For  the  contract  was  a  purely  executory  one  and  the  actual 
transaction  is  clearly  indicative  of  an  intention  on  the  part  of 
the  shipper  that  it  shall  not  constitute  a  performance  thereof.^ 
Any  agreement  of  this  kind  between  the  consignor  and  the 
consignee  is  entirely  immaterial  in  adjusting  the  rights  of  one 
who  has  in  good  faith  taken  a  bill  of  lading  from  the  consignor 
to  secure  himself  in  an  advance  made  upon  the  goods.  Of  such 
a  case  the  Supreme  Court  of  Illinois  said  in  a  recent  case  •}  "  It 
is,  however,  claimed  that  there  was  here  a  pre-existing  agree- 
ment between  Trotter  [the  consignor]  and  Taylor  [the  con- 
signee], which  placed  the  former  under  obligation  to  send  his 
wheat  to  the  latter,  to  be  sold  by  him  for  the  reimbursement  of 
his  advances  made  on  the  credit  of  grain  to  be  consigned  to 
him  by  Trotter ;  that  Taylor  was  largely  in  such  advance  at 

*  First  National  Bank  of  Cairo  v.  N.  Y.  631  ;  Marine  Bank  v.  Wright, 

Crocker,  111  Mass.  163.  48  ib.  1  ;   Chopin  v.  Chirk,  31  La.  Ann. 

2  Taylor   v.    Turner,    87    111.    296;  Rep.  846  ;  Halsey  i\  Warden,  25  Kan. 

see  also  Cayuga  Bank  v.  Daniels,  47  128. 

391  . 


§  521.] 


BILLS   OF   LADING.  [CHAP.  XXXVI. 


the  time  of  this  transaction  and  that  under  such  circumstances, 
at  least  the  delivery  of  the  wheat  on  the  railroad,  consigned  to 
Taylor,  as  well  as  the  delivery  to  him  from  the  railroad,  vested 
the  property  in  him.  Allowing  the  utmost  extent  that  can  be 
claimed  for  this  agreement,  that  it  was  one  to  thus  consign  to 
Taylor  all  the  grain  which  Trotter  should  buy,  there  would 
have  been  here  but  a  breach  of  promise,  as  Trotter  did  not  so 
consign  this  grain,  except  as  io  the  surplus,  above  paying 
Turner  [the  owner  of  drafts  drawn  against  the  wheat].  Such 
an  agreement  would  be  one  in  relation  to  property  to  be  after- 
ward acquired,  and  could  have  no  effect  in  giving  the  title  to 
any  such  property  until  after  it  had  come  into  the  possession  of 
Taylor.  But  before  this  wheat  came  into  the  possession  of 
Tavlor,  the  rights  of  Turner  had  attached,  and  when  it  came 
to  Taylor,  Trotter's  only  interest  in  it  was  his  right  thereto, 
subject  to  the  pledge  of  the  property  he  had  made  to  Turner 
for  the  payment  of  the  drafts,  and  Taylor  received  no  greater 
interest.  Delivery  to  a  carrier  is  considered  as  a  delivery  to 
the  consignee  only,  where  and  as  it  is  in  agreement  with  the 
terms  and  the  intention  of  the  shipment." 

§  520.  A  consignee  to  whom  the  consignor  is  indebted  upon 
general  account  cannot  appropriate  the  proceeds  of  a  shipment 
to  the  payment  of  the  general  balance  due  him,  as  against  a 
pledgee  for  value  of  a  bill  of  exchange  drawn  against  the  goods, 
even  when  at  the  time  of  delivery  of  the  goods  he  was  not 
aware  that  the  draft  had  bfeen  drawn.' 

§  521.  The  property  acquired  in  the  goods  covered  by  a  bill 
of  lading  by  one  to  whom  the  latter  is  pledged  as  collateral 
security  for  the  discount  of  the  draft  drawn  against  it,  is,  of 
course,  a  special  property.  His  title,  in  other  words,  is  con- 
ditional. In  the  case  of  a  time  draft,  it  is  conditional  upon  the 
consignee's  acceptance  and  by  such  acceptance  it  is  divested. 
The  title  and  the  right  of  possession  at  once  pass  to  the 
consignee  and  the  former  holder  is  left  recourse  only  against 
the  consignee  as  acceptor.  The  pledge  is  a  pledge  to  secure 
acceptance  and  the  title  of  the  pledgee  is,  therefore,  extin- 
guished when  the  purpose  of  the  pledge  is  thus  fulfilled.     Or 

1  "Wilmerdiiig  v.  Hart,  Hill  &  Denio  (Suppl.),  305. 
392 


CHAP.  XXXVI.]  COLLATERAL    SECURITY.  [§  523. 

it  may  be  expressly  stipulated  that  the  bill  of  lading  shall 
secure  not  only  the  acceptance,  bufe  the  payment  of  the  draft 
drawn  against  it.  In  such  a  case  the  pledgee's  title  would 
not  be  divested  by  acceptance,  but  would  continue  until  tlie 
draft  had  been  paid.  In  either  case,  however,  the  holder  of  the 
bill  gains  no  absolute  title  to  the  goods.  His  title  extends  so 
far  as  to  protect  the  advances  he  has  made.  If  the  terms  of ' 
the  pledge  are  broken  by  the  consignee's  failure  or  refusal  to 
accept  or  pay,  or  by  the  vendor's  failure  to  comply  with  the 
terms  of  his  contract,  in  consequence  of  which  the  vendee  re- 
fuses to  accept  the  goods,  the  pledgee  of  the  bill  may  receive 
the  goods  himself  and  sell  them  to  reimburse  himself.^  His 
title  is,  however,  in  either  case  subject  to  be  divested  by  per- 
formance of  the  one  condition  or  the  other." 

§  522.  So  if  the  transaction  be  regarded  as  a  mortgage  of 
the  goods  rather  than  a  pledge.  Though  it  has  been  said 
that  in  such  a  case  a  general  rather  than  a  special  property 
passes  to  the  holder,  yet  that  general  property  is  subject  to  a 
defeasance  by  performance  of  the  condition.^ 

The  conditional  character  of  the  pledgee's  title  is  not  seriously 
questioned.  The  principle  has  rather  been  necessarily  implied 
than  expressly  decided  in  the  cases.  A  more  mooted  question  is 
as  to  what  the  condition  is,  acceptance  of  the  draft  or  its  payment. 

§  523.  A  bill  of  lading  attached  to  and  forwarded  with  a  time 
draft  for  the  price  of  the  goods  covered  by  it,  is,  in  the  absence  of 
special  stipulations,  a  security  for  the  acceptance  of  the  draft 
rather  than  its  payment.  In  The  National  Bank  of  Commerce  v. 
Merchants'  National  Bank,*  it  was  said  by  Mr.  Justice  Strong, 

1  Welsh  V.   Gossler,  11  Abb.,  New         *  National   Bank  of   Commerce    v. 

Cases,  452  ;  Cornwall  v.  Wilson,  1  Ves.  Merchants'  National  Bank,  1  Otto,  92  ; 

500;  Allen  v.  Williams,  12  Pick.  301.  Lantlar  v.  Blossom,  1   La.  Ann.  Rep. 

«  Cayuga  Bank  v.   Daniels,  47  N.  148;  Wisconsin  Ins.  Co.  r.  The  Bank, 

y.    631  ;    Dows   v.  Exchange   Bank,  21   Up.   Can.    Q.   B.   284,  affirmed  2 

1   Otto,   618;    Bank   of   Rochester  v.  Up.  Can.  Error  &  Appeal  Rep.  282; 

Jones,  4  N.  Y.  497  ;  Marine  Bank  v.  Shepherd  v.  Harrison,  L.  R.  4  Q.  B. 

Wright,  48  ib.  1  ;   Allen  v.  Williams,  493  ;    Coventry  v.   Gladstone,   L.    R. 

12  Pick,  297  ;  First  National  Bank  of  4  Eq.  493  ;   Gurnly  v.  Behrend,  3  El. 

Cairo  v.  Crocker,  111  Mass.  163.  &  Bl.  622. 

»  Bank  of  Rochester  v.  Jones,  4  N. 
Y.  497. 

393 


^  524.]  BILLS   OF   LADING.  [CITAP.  XXXVI. 

iu  reply  to  the  argument  that  the  bill  of  lading  was  in  such 
a  case  a  contract  collateral  to  the  bill  of  exchange  discounted 
and  that  when  transferred  it  became  a  security  for  the  principal 
obligation,  namely,  the  contract  evinced   by  the  bill  of  ex- 
change, "  the  argument  assumes  the  very  point  to  be  proved.  .  . 
Payment  of  the  drafts  by  the  drawees  was  no  part  of  the  con- 
tract when  the  discounts  were  made.     The  bills  of  exchange 
were  then  incomplete.     They  needed  acceptance.     They  were 
discounted  in  the  expectation  that  they  would  be  accepted,  and 
that  thus  the  bank  would  obtain  additional  promissors.     The 
whole  purpose  of  the  transfers  of  the  bills  of  lading  to  the 
bank  may,  therefore,  well  have  been  satisfied  when  the  addi- 
tional names  were  secured  by  acceptance  and  when  the  drafts 
thereby  became  completed  bills  of  exchange.     We  have  already 
seen  that  whether  the  drafts  and  accompanying  bills  of  lading 
evidenced  sales  on  credit  or  requests  for  advancements  on  the 
cotton  consigned  or  bailments  to  be  sold  on  the  consignor's 
account,  the  drawees  were  entitled  to  the  possession  of  the  cot- 
ton before  they  could  be  required  to  accept,  and  that  if  they  had 
declined  to  accept  because  possession  was  denied  to  them  con- 
currently with  their  acceptance,  the  effect  would  have  been  to 
discharge  the  drawers  and  indorsers  of  the  drafts.     The  demand 
of  acceptance,  coupled  with  a  claim  to  retain  the  bills  of  lading 
would  have  been  insufficient  demand.     Surely  the  purpose  of 
putting  the  bills  of  lading  into  the  hands  of  the  bank  was  to 
secure  the  completion  of  the  drafts  by  obtaining  additional 
names  upon  them,  and  not  to  discharge  the  drawers  and  in- 
dorseys,  leaving  the  bank  only  a  resort  to  the  cotton  pledged." 
§  524.  In  a  previous  portion  of  the  opinion  in  this  case,  it  was 
remarked  that  the  fact  that  a  time  draft  is  sent  in  the  usual  man- 
ner accompanied  by  a  bill  of  lading  indorsed  in  blank,  clearly 
implies  either  that  the  goods  were  sold  on  credit  to  be  paid  for 
by  the  accepted  draft  or  that  the  draft  is  a  demand  for  an  ad- 
vance on  the  shipment  or  that  the  transaction  is  a  consignment 
to  be  sold  by  the  drawee  on  account  of  the  shipper.     If  it  is 
the  first,  the  purchaser  is  certainly  entitled  to  possession  of  the 
goods  upon  accepting  the  bill.     "  This  would  not  be  doubted, 
if,  instead  of  an  acceptance,  he  had  given  a  promissory  note  for 
the  goods,  payable  at  the  expiration  of  the  stipulated  credit. 
394 


CHAP,  XXXVI.]  COLLATERAL   SECURITY.  [§  525. 

In  such  a  case  it  is  clear  that  the  vendor  could  not  retain  pos- 
session of  the  subject  of  the  sale  after  receiving  the  note  for  the 
price.  .  .  .  But  an  acceptor  of  a  bill  of  exchange  stands  in  the 
same  position  as  the  maker  of  a  promissory  note."     In  the 
.  other  alternative  the  consequence  is  the  same.     The  acceptance 
is  requested  upon  the  credit  of  the  consignment,  not  upon  the 
credit  of  the  drawer.     If  the  security  forwarded  is  not  given, 
the  acceptance  cannot  be  required.     If  again  the  transaction  be 
a  consignment  to  be  sold  by  the  drawee  on  account  of  the 
shipper,  the  same  considerations  render  it  evident  that  there  is 
no  obligation  upon   the  former  to  accept  the  draft  without 
receiving  the  bill  of  lading.     The  court  further  said  in  this 
case,  "  The  opinions  we  have  suggested  are  supported  by  other 
very  rational  considerations.     In  the  absence  of  special  agree- 
ment, what  is  the  consideration  for  acceptance  of  a  time  draft 
drawn  against  merchandise  consigned?     Is  it  the  merchandise, 
or  is  it  the  promise  of  the  consignor  to  deliver?     If  the  latter, 
the  consignor  may  be  wholly  irresponsible.     If  the  bill  of  lad- 
ing be  to  his  order,  he  may,  after  the  acceptance  of  the  draft, 
indorse  it  to  a  stranger,  and  thus  wholly  withdraw  the  goods 
from  any  possibility  of  their  ever  coming  to  the  hands  of  the 
acceptor.      Is,  then,  the  acceptance  a  mere  purchase  of   the 
promise  of  the  drawer  ?     If  so,  why  are  the  goods  forwarded 
before  the  time  designated  for  payment?     They  are  as  much 
after  shipment  under  the  control  of  the  drawer  as  they  were 
before.     Why  incur  the  expense  of  storage  and  of  insurance? 
And  if  the  draft  with  the  goods  or  with  the  bill  of  lading  be 
sent  to  a  bank  for  collection  as  in  the  case  before  us,  can  it  be 
incumbent  upon  the  bank  to  take  and  maintain  custody  of  the 
property  sent  during  the  interval  between  the  acceptance  and 
the  time  fixed  for  payment  ?    Meanwhile,  though  it  be  a  twelve- 
month, and  no  matter  what  the  fluctuations  in  the  market 
value  of  the  goods  may  be,  are  the  goods  to  be  withheld  from 
sale  or  use  ?     And  who  is  to  pay  the  warehouse  charges  ?     Cer- 
tainly not  the  drawees.     If  they  are  to  be  paid  by  the  vendor, 
or  one  who  has  succeeded  to  the  place  of  the  vendor  by  indorse- 
ment of  the  draft  and  bill  of  lading,  he  fails  to  obtain  the  price 
for  which  the  goods  were  sold." 

§  525.  Accordingly,  a  consignor's  agent  or  a  holder  of  the 

395 


R  527.1  BILLS   OF   LADING.  [CHAP.  XXXVI. 

bill  who  has  become  such  by  discounting"  the  draft  drawn 
against  the  consigned  property,  is  bound  to  surrender  the  bill 
of  lading  to  the  consignee  upon  the  latter's  acceptance  of  the 
draft,'  The  fact  that  the  draft  has  been  sent  to  an  agent  "for 
collection"  does  not  alter  the  rule.^  The  phrase  is  simply 
to  rebut  the  inference  from  the  indorsement  that  the  agent  is 
the  owner  of  the  draft.  It  is  the  duty  of  the  agent  to  collect 
the  amount  of  the  draft,  but  that  amount  is '  not  collectible 
until  the  draft  is  accepted.  In  surrendering  the  bill  of  lading 
to  procure  such  acceptance,  therefore,  the  agent  is  taking  a  step 
indispensable  to  the  execution  of  his  agency.  It  follows,  of 
course,  that  in  the  absence  of  special  instructions  to  the  con- 
trary, an  agent  so  surrendering  the  bill  cannot  thereby  render 
himself  liable  for  negligence.  Such  an  agent,  in  the  language 
of  the  Supreme  Court  of  the  United  States,'  "cannot  reason- 
ably be  required  to  know,  without  instruction,  that  the  trans- 
action is  not  what  it  purports  to  be." 

§  526.  A  holder  of  a  bill,  to  whom  it  has  been  indorsed  upon 
his  discount  of  the  draft  drawn  against  it,  has  no  greater  right 
than  an  agent  "for  collection."  This  is  so  because  he  has  no 
greater  right  than  the  shipper.  The  indorsement  in  such  a  case 
cannot  alter  the  contract  between  the  vendor  and  vendee  and 
withdraw  from  the  latter  the  right  of  possession  to  which  he 
was  entitled  under  it.* 

§  527.  By  virtue  of  an  express  agreement  to  that  eftect,  a 
bill  of  lading  may  be  made  security  for  the  payment  of  the 
draft  rather  than  for  its  acceptance  alone.  One  who  purchases 
a  draft  drawn  against  a  cargo  and  receives  the  bill  of  lading 
as  expressly  pledged  to  secure  the  payment  of  the  draft,  cannot 
be  required  to  surrender  the  security  upon  the  acceptance  of  the 
draft  and  rely  solely  upon  the  personal  credit  of  the  acceptors. 
While  in  such  a  case  the  reasons  heretofore  considered  may  ex- 

^  National  Bank  of  Commerce   v.  '  National   Bank   of  Commerce  v. 

Merchants'    National   Bank,   1    Otto,  Merchants'    National   Bank,    1    Otto, 

92;   Wisconsin  Ins.  Co.  v.  The  Bank,  92. 

21   U.  C.  Q.  B.  284  ;   2    U.  C.  Er.  &  *  National   Bank    of  Commerce   v. 

App.  Rep.  282.  Merchants'    National   Bank,    1    Otto, 

*  National   Bank    of   Commerce  v.  92. 
Merchants'  National  Bank,  1  Otto,  92. 
396 


GHAP.  XXXVI.]  COLLATERAL   SECURITY.  [§  529. 

onerate  the  drawees  from  their  obligation  to  accept,  the  express, 
terms  of  the  indorsee's  contract  with  the  drawers  exonerates  the 
former  from  any  duty  to  deliver  the  bill  of  lading  except  upon 
payment.  Consequently  where  the  drawer  thus  confers  upon 
his  indorsee  the  power  to  withhold  from  the  drawee  the  secu- 
rity without  which  the  latter  under  his  contract  is  not  obliged 
to  accept  the  bill,  the  drawer  is  not  entitled  to  demand  formal 
presentment  of  the  bill  of  exchange  for  acceptance  and  notice 
of  its  non-acceptance.*  The  intention  of  the  shipper  that  his 
agent  shall  hold  a  bill  of  lading  until  payment  of  the  accom- 
panying draft  must  of  course  be  expressed  clearly  to  the  agent. 
For,  as  has  been  seen,  the  prevalent  custom  is  to  hold  it  only 
as  security  for  acceptance.  To  hold  it  until  the  draft  is  not 
only  accepted  but  paid,  is  "an  exceptional  course,  adopted  only 
in  times  of  peril  and  suspicion."'^ 

§  528.  It  follows  that  a  consignee  of  goods  which  the  vendor 
has  pledged  to  secure  their  price  can  entitle  himself  to  posses- 
sion of  the  goods  only  by  payment  or  tender  of  the  price,  or 
by  giving  the  specified  obligation  to  pay  the  price  at  a  future 
time.  The  appropriation  under  the  contract  of  sale  is,  in  the 
case  of  such  a  pledge,  conditional  and  the  pledgee's  title  re- 
mains paramount  to  that  of  the  consignee  until  the  conditions 
are  performed.^ 

§  529.  The  property  in  the  goods  vests  in  the  consignee 
upon  his  acceptance  or  payment  of  the  draft,  where,  at  least, 
there  has  been  a  sale  of  the  goods  and  not  an  absolute  reserva- 
tion by  the  vendor  of  the  Jus  disponendi.  Upon  such  an  ac- 
ceptance or  payment,  or  tender  thereof,  the  pledgee  of  the  bill 
has  no  further  right  over  the  bill  of  lading  .or  the  goods. 
Where  the  vendor  has  made  the  bill  deliverable  to  his  own 
order,  it  has  been  held  that  the  consignee  can  obtain  no  title, 
although  he  tenders  his  acceptance  or  payment  of  the  draft,* 

1  Schuchardt  v.  Hall,  36  Md.  590.  Shepherd  v.  Harrison,  L.  R.  4  Q.  B. 

«  Gurney   v.    Behrend,    3    Ellis    &  196;   Ogg  v.  Shuter,   L.  R.  10  C.  P. 

Blackburn,  630.  159. 

»  Alderman  r.  Eastern  R.  Co.,  115  *  Wait   v.  Baker,   2   Ex.   1;   Eller- 

Mass.    233  ;    Ne-wcomb   v.    Boston   &  shaw  v.  Magniac,    6  ib.   570  ;   Gavar- 

Loweil   R.    Co.,   ib.    230;    Turner  v.  ron  v.  Kreeft,  L,  R.  10  Ex.  274. 
Trustees  Liverpool  Docks,  6  Ex.  543  ; 

397 


e  531_-]  BILLS   OF   LADING.  [CHAP.  XXXVI. 

but  where  the  bill  of  lading  has  been  dealt  with  only  to  secure 
the  contract  price,  the  property  vests  in  the  consignee  upon  his 
payment  or  tender  of  the  price.  If  thereupon  the  pledgee  re- 
fuses to  deliver  the  goods,  the  latter  is  liable  to  the  consignee 
in  damages  for  the  non-deli  very. ^ 

§  530.  The  pledgee's  right  to  the  goods,  or  to  equivalent  dam- 
ages, is  not  divested  by  the  consignee's  obtaining  possession  of 
them  from  the  carrier  without  accepting  the  draft.  In  such  a 
case  the  pledgee  may  maintain  an  action  against  the  consignee 
for  the  proceeds  of  the  goods  if  he  has  sold  them,  as  for  moneys 
had  and  received.''  If  the  consignee  obtain  the  goods  under 
a  duplicate  bill  of  lading  inadvertently  placed  in  his  posses- 
sion ;  or  under  an  invoice  which  the  carrier  treats  as  sufficient 
authority ;  or  in  any  other  way  save  by  the  authority  of  the 
pledgee,  he  thereby  obtains  no  title  which  will  prevail  against 
that  of  the  latter,  where  delivery  is  by  the  terms  of  the  con- 
tract, express  or  implied,  made  conditional  upon  his  payment 
or  acceptance  of  the  draft.  Thus  where  the  consignee  was  sent 
an  invoice  of  the  shipment  and,  by  presenting  it  to  the  captain 
of  the  vessel  by  which  the  goods  were  shipped,  obtained  pos- 
session and  sent  them  to  an  auctioneer  to  be  sold,  without 
paying  a  draft  drawn  against  him  for  the  price,  the  pledgee  of 
the  bill  of  lading  was  held  entitled  to  maintain  trover  against 
the  auctioneer.' 

§  531.  Where  the  consignee's  possession  has  been  obtained 
even  through  the  pledgee's  own  delivery  of  the  goods,  the 
latter's  title  is  not  thereby  destroyed  or  impaired  where  the 
bill  of  lading  was  delivered  under  an  express  stipulation  that 
the  goods,  being  pledged  for  the  payment  of  the  draft,  are 
placed  in  the  control  of  the  consignee,  or  his  agent  in  trust,  to 
redeem  the  pledge.  Where  in  such  a  case  an. agent  of  the  con- 
signee who  has  seen  a  copy  of  the  pledgee's  indorsement  of  the 

'  Mirabita    v.    Imperial     Ottoman  Millar    v.    Saving   Ass'ti,    3   Weekly 

Bank,  3  Ex.  D.  164;  38  Law  Times  Notes,    480;    Wilmerding    v.    Hart, 

R.  (N.  S.)  597.  Hill  &  Denio  (Suppl.),  305;    Hoare 

*  Indiana  Nat.  Bank  v.  Colgate,  4  v.  Dresser,  5  Jurist  (N.  S.),  371. 

Daly,  41  ;  People's  Bank  v.  Stewart,  *  People's  Bank  v.  Stewart,  3  P.  & 

3   P.  &    B.   (New  Brunswick)   268 ;  B.  (New  Brunswick)  268. 
398 


CHAP.  XXXVI.]  COLLATERAL   SECURITY.  [§  531. 

bill  of  lading,  creating  sucli  a  trust  of  the  goods,  delivers  the 
latter  to  the  consignee's  vendee,  to  whom  such  agent  has  made 
advances  for  the  purchase,  the  agent  is  liable  to  the  pledgee  for 
conversion.^ 

'  Farmers  &  Mechanics'  Bank  v.  Hazeltine,  78  N.  Y.  104. 

399 


§  532.] 


BILLS    OF   LADING. 


[chap.  XXXVII. 


CHAPTER  XXXVIT. 

THE  BILL-HOLDER'S  TITLE  AND  THE  RIGHT  OF  STOPPAGE 

IN  TRANSITU. 


The  right  in  general,  §  532. 

The  right  is  defeated  by  a  transfer  of 
the  bill  of  lading  for  value  to  a  bona 
fide  transferree,  §  533. 

The  bill-holder's  title  is  not  necessarily 
invalidated  by  the  fraud  of  the  origi- 
nal vendee,  §  534. 

The  bill  must  have  been  obtained  in 
faith  of  an  apparent  title,  §  535. 

Right  of  stoppage  is  not  defeated  where 
the  transfer  is  fraudulent,  §  536. 

Transferree' s  knowledge  of  the  ven- 
dee's insolvency,  or  that  the  goods 
were  not  paid  for,  §  537. 

The  consideration  for  the  transfer — 
What  bill-holders  may  defeat  the 
right  of  stoppage,  §  538. 

The  same.     Antecedent  debts,  §  539. 

The  same.      Contemporaneousness  of 


the  transfer  and  payment  of  con- 
sideration, §§  540,  541. 

The  same.  Transfer  as  collateral  for 
an  antecedent  debt,  §  542. 

The  same.  Forbearance  to  sue,  etc., 
§  543. 

Tlie  bill-holder  has  only  such  an  inte- 
rest as  will  protect  his  advances. 
Consignor's  right  to  the  surplus, 
§544. 

The  same.  Sub-sales — sale  of  goods 
"  to  arrive,"  etc.,  §  545. 

The  same.  Additional  securities  of  the 
vendee  must  be  first  appropriated  to 
the  pledg(ie's  claim,  §  546. 

The  right  of  stoppage  is  not  defeated, 
unless  the  bill  is  transferred,  §  547. 

Notice  of  stoppage  to  the  carrier  after 
the  vendee's  transfer  of  the  bill,  §  548. 


§  532.  The  most  important  of  all  the  consignor's  rights  is  that 
of  stoppage  in  transitu,  namely,  the  right  of  an  unpaid  vendor, 
in  the  case  of  his  vendee's  insolvency,  to  stop  the  goods  while  in 
the  course  of  transportation  to  the  latter.  The  origin  of  this 
right,  whether  derived  or  developed  from  the  principles  of 
equity,  from  analogies  in  the  common  law,  or  from  the  growth 
of  pure  mercantile  custom,*  its  character  and  effect,  whether  a 
rescission  of  the  contract  of  sale  or  the  establishment  of  a  lien 
and  the  multitudinous  phases  of  the  question  in  its  various 
applications,   are   not   within   the   scope   of   the   present   dis- 

'   See    Lord  Abinger  in    Gibson    v.     man    v.   Vandeputt,    2    Vernon,   202 ; 
Carruthers,   8  M.  &  W.   337;  Wise-     Burghall  i;.  Howard,  1  H.  Bl.  366,  n. 
400 


CHAP.  XXXVII.]      RIGHT    OF   STOPPAGE   IN   TRANSITU.  [§  533. 

cussioD,'  save  as  the  exercise  of  the  right  may  be  affected  by 
the   issue  and   negotiation  of  bills  of  lading  for  the   goods 
shipped.     In  discussing  the  latter,  it  must  be  remembered  that 
the  right  amounts  in  substance  to  an  extension  by  the  law 
merchant  of  the  lien  for  price  which  a  vendor  has  before  de- 
hvery.     It  is  a  lien  of  a  peculiar  character,  in  that  its  existence 
18  not  dependent,  like  that  of  ordinary  liens  for  price,  upon  the 
co-existence  of  the  right  and  fact  of  possession  and  is  not  lost 
with  the  loss  of  either.     In  the  case  of  a  sale  of  goods  upon 
credit,  the  right  of  possession  and  the  right  of  property  are' 
immediately  transferred  to  the  vendee.     Both  rights  are  quali- 
fied and  are  defeasible  by  his  insolvency  before  possession  is 
obtained.     To  the  vendee  belongs  the  right  of  property.     Upon 
him  must  fall  the  loss  incurred  in  any  accident  in  the  transit  and 
in  him  is  the  right  to  claim  possession  upon  tender  of  the  price. 
Until  the  latter  is  made,  the  vendor's  right  to  resume  possession 
is  retained  and  may  be  asserted. 

_  §  538.  Although  the  law  has  thus  adjusted  the  respective 
rights  of  the  principals  in  the  transaction,  it  frequently  happens 
that  equities  are  created  in  favor  of  third  parties,  which  are 
superior  to  that  of  the  vendor.     Such  an  equity  is  most  fre- 
quently  raised  by  the  negotiation  of  the  bills  of  lading  for  the 
goods  shipped.     The  cardinal  proposition  relative  to  this  modi- 
fication of  the  principle  is  that  the  right  to  stop  in  transitu 
may  be  defeated  by  a  transfer  of  the  bill  of  lading  for  value  to 
a  bonajide  indorsee.     The  leading  case  in  its  establishment  is 
that^of  Lickbarrow  v.  Mason,^  decided  in  the  House  of  Lords 
in  1793,     In  that  case  the  consignors  of  a  cargo  sent  two  bills 
of  lading  therefor  to  the  consignee,  indorsed  in  blank,— another 
bill  being  retained  by  them  and  a  fourth  by  the  master  of  the 
vessel.     Bills  of  exchange  for  the  price  were  afterward  drawn 
by  the  consignors  upon  the  consignee  and  by  him  accepted. 
The  consignee  sent  to  the  plaintifts,  before  the  arrival  of  the 
cargo,  the  two  bills  of  lading,  together  with  the  invoice,  which 
he  had  received  from  the  consignors,  in  order  that  the  plaintiffs 

1  See  a  general   discussion  of  the        «  2  T.    R.    63  ;  1   H.    BI.   357-6 
subject  in  Benjamin  on  Sales,  Book    East,  21  '  '        '  '. 

v.,  Part  I.,  c.  V. 

26  401 


^  533.]  BILLS   OF   LADING.  [CHAP.  XXXVII. 

mio-ht  obtain  possession  of  the  goods  and  sell  them  on  his  ac- 
count. The  consignee  drew  bills  of  exchange  upon  the  plain- 
tiffs for  the  price,  which  were  paid.  Afterward,  before  the 
arrival  of  the  goods  and  before  the  bills  of  exchange,  drawn 
by  the  consignors  upon  the  consignee,  fell  due,  the  latter  became 
bankrupt.  The  bills  w^ere  duly  protested  and  were  afterward 
taken  up  by  the  consignors.  Upon  learning  of  the  consignee's 
bankruptcy,  the  consignors  indorsed  to  the  defendants  the  bill 
of  lading  which  they  had  retained  and  transmitted  it  to  them, 
with  authority  to  obtain  possession  of  the  goods  for  and  on  ac- 
count of  the  consignors.  Upon  the  arrival  of  the  cargo,  the 
plaintiffs  presented  their  bill  of  lading  to  the  master  of  the 
vessel  and  obtained  from  him  possession  of  the  goods.  The 
plaintiffs,  tendering  freight  and  charges,  demanded  the  goods 
from  the  defendants  and,  upon  refusal  of  the  demand,  brought 
trover.  The  general  right  to  stop  in  transitu  in  such  cases  was 
conceded  by  all  the  judges  before  whom  successively  the  case 
was  argued,  but  in  the  House  of  Lords  it  was  distinctly  ruled, 
in  affirmance  of  the  judgment  which  had  been  reversed  by 
the  Exchequer,  that  if  the  consignee  of  goods  in  transit  assign 
for  a  valuable  consideration  to  an  innocent  third  party  the  bills 
of  lading,  the  consignor's  right  as  against  such  assignee  is  lost. 
Mr.  Justice  Buller,  in  delivering  the  judgment  of  the  Lords, 
adopted  the  principle  enunciated  in  Lempriere  v.  Pasley,^  in  1788, 
that  as  between  a  person  who  has  an  equitable  lien  and  a  third 
person  who  purchases  a  thing  for  a  valuable  consideration  and 
without  notice,  the  prior  equitable  lien  must  give  way  to  the  title 
of  the  vendee.  "  This  is  founded  on  plain  and  obvious  reason  ; 
for  he  who  has  bought  a  thing  for  a  fair  and  valuable  considera- 
tion, and  without  notice  of  any  right  or  claim  by  any  other  per- 
son, instead  of  having  equity  against  him,  has  equity  in  his 
favor  ;  and,  if  he  have  law  and  equity  both  with  him,  he  cannot 
be  beat  by  a  man  who  has  equal  equity  only."  It  was  laid  down, 
moreover,  following  a  previous  judgment  of  the  Lords,  in  the 
case  of  Kinlock  v.  Craig,^  that  the  right  of  stoppage  in  transitu' 
never  arises  except  as  between  vendor  and  vendee  and  that  a 

'  2  Term  R.  485.  *  3  ib.  787. 

402 


CHAP.  XXXVII.]      EIGHT    OF   STOPPAGE   IN    TRANSITU.  [§  535. 

bona  fide  indorsee  of  a  bill  of  lading  from  the  consignee  of  the 
goods  could  not  be  considered  the  vendee  of  the  consignor. 

The  principle  of  the  case  of  Lickbarrow  v.  Mason  is  accepted 
as  tlie  law  in  both  England  and  America.^ 

§  534.  The  title  of  the  bona  fide  indorsee  under  his  bill  of 
lading  is  not  necessarily  invalidated  by  the  fact  that  the  trans- 
action between  the  vendor  and  the  original  vendee  is  tainted 
with  fraud  on  the  part  of  the  latter.  The  law  prefers  the  title 
of  a  bona  fide  purchaser  for  value  from  a  fraudulent  vendee  to 
that  of  the  original  owner.^  The  rule,  as  stated  in  Keyser 
V.  Harbeck^,  is  that  where  there  has  been  a  contract  of  sale 
and  a  delivery  under  it  sufficient  in  law  to  vest  the  property  in 
the  first  purchaser  and  make  a  good  title  if  not  tainted  with 
fraud,  the  bona  fide  vendee  of  such  a  purchaser,  buying  and  ob- 
taining possession  before  the  contract  has  been  rescinded,  will 
acquire  a  perfect  title  as  against  the  first  vendor.  Such  a  sale 
being  not  void,  but  voidable,  the  vendor  may  reclaim  his  goods 
from  the  vendee,  but  not  from  a  bona  fide  purchaser  from  the 
latter  without  notice  of  the  fraud. 

§  535.  The  title  of  the  purchaser  from  the  original  vendee 
must,  however,  have  been  obtained  not  only  without  notice  of 
the  fraud  and  for  value,  but  upon  the  faith  of  an  apparent  title 
such  as  is  incident  to  the  possession  of  the  bill  of  lading.^  The 
title  of  a  bona  fide  purchaser  from  a  fraudulent  vendee  will  be 

1  Gurneyr.  Behrend,  3E.  &B.  622;  v.    Randall,  3    Cliff,  99;    The   Mary 

Kemp  V.  Falk,  L.  R.  7  App.  C.  573  ;  Ann  Guest,  1  Blatchf.  358  ;   Chandler 

In  j-e  Westzinthus,  5  B.  &  Ad.   817;  v.   Fulton,    10    Texas,  2;    First    Nat. 

Spalding    v.    Ruding,    6     Bear.    376;  Bank  of  Memphis?;.  Pettit,  9  Heisk. 

Conard  v.   Atlantic  Insurance  Co.,    1  447;    Halliday  v.  Hamilton,  11  Wall. 

Peters,    386;    Becker   v.    Hallgarten,  560;    Allen  v.  Me.  Cent.  R.  Co.,  79 

86  N.  Y.  167  ;  Warren  v.  Sproule,  2  Me.  327. 

Marsh,     528  ;    Dows    v.    Greene,    32        ^  Dows   v.    Rush,    28    Barb.    157  ; 

Barb.  490;    Lee  v.  Kimball,  45  Me.  Parker  r.  Patrick,  5  T.  R.  175  ;  White 

172;  Schumacher  v.  Eby,  24  Pa.  St.  v.  Gardner,  5    Law  &   Eq.    R.  379; 

521;    Rosenthal  v.  Dessan,   11  Hun,  Keyser  v.    Harbeck,    3    Duer,    391; 

49;    Dows  w.  Perrin,   16  N.  Y.   325;  Rowley    v.    Bigelow,    12   Pick.    307; 

Relyea  v.  N.  H.  Rolling  Mill  Co.,  42  Dows  v.  Greene,  32  Barb.  490. 
Conn.  579;  Newhall  v.   C.  P.  R.  R.,         »  3  Duer,  373. 

51    Cal.   345 ;    Schmidt  v.   Steamship        *  Barnard   v,   Campbell,   58  N.  Y. 

Penna.,  7  W.  N.  C.  (Pa.)  98  ;  Curry  v.  73  ;  55  ib.  456. 
Roulstone,  2  Overt.  Ill ;  Audenreid 

403 


§  537.]  BILLS    OF   LADING.  [CHAP.  XXXVII. 

preferred  to  that  of  a  hojiajide  vendor  only  when  the  purchaser 
has  not  only  parted  with  value,  but  has  done  so  Upon  the  credit 
of  possession,  or  constructive  possession,  in  the  vendee,  received 
from  the  vendor  and  by  means  of  which  the  latter  has  in  legal 
contemplation  induced  the  second  purchaser  to  treat  the  first 
as  owner.  Unless  the  vendor  has  thus  vested  his  vendee  with 
an  apparent  ownership,  the  principle  of  estoppel  which  lies  at 
the  base  of  the  rule  under  consideration,  lacks  one  of  its 
essential  elements. 

§  536.  The  right  of  stoppage  in  'transitu  cannot,  however,  be 
defeated  by  an  apparent  sale  or  transfer  of  the  bill  of  lading, 
fraudulently  made  for  the  very  purpose  of  defeating  the  right. 
To  prevent  the  exercise  of  the  right  there  must  be  a  transfer 
for  value  and  without  fraud. •  Where  in  an  action  to  enforce 
an  alleged  stoppage  m  transitu  a  consignee  defends  upon  the 
sfround  that  he  had  received  the  goods  into  his  possession  and 
sold  them  and  assigned  the  bill  of  lading  therefor  to  a  third 
party,  the  plaintift'  may  show  that  the  sale  and  assignment 
were  fraudulent  in  a  supplemental  complaint. 

§  537.  Proof  that  the  assignee  of  the  bill  of  lading  from  the 
original  vendee  had  knowledsje  at  the  time  of  the  transfer  of  the 
bill,  of  the  vendee's  insolvency,  is  admissible  in  a  contest  with  the 
vendor,  to  show  that  the  bill  was  not  taken  in  good  faith.^  It 
has  been  held,  that  where  there  is  no  collusion  and  the  trans- 
ferree  has  no  notice  of  any  other  circumstance  which  ought  in 
fairness  to  have  prevented  his  taking  the  bill,  his  knowledge 
that  the  goods  had  not  been  paid  for  in  money  does  not 
render  the  transfer  to  him  invalid.^  Knowledge  of  the 
fact  that  the  particular  goods  in  transit  had  not  been  paid 
for  would  seem  to  be  far  weaker  evidence  of  bad  faith  on  the 
part  of  the  assignee  than  knowledge  of  the  vendee's  insolvency, 
yet  the  rule  has  been  considered,  perhaps  justly,  open  to 
criticism.      For,  as  was  said  in  Ilolbrook  v.  Vose,*    "  where 

•  Rosenthal    v.    Dessau,    11    Hun,  Spear,    30  Vt.  545  ; -Covell  v.    Hitch- 

49.  cock,  23  Wend.  611 ;  Vertue  r.  Jewell, 

2  Loeb    V.    Peters,    63    Ala.    243;  4  Camp.  31. 

Stanton  v.  Eager,   16  Pick.  476;   lis-  "  Canning  v.  Brown,   9  East,  509; 

ley  V.  Stubbs,  9  Mass.  65  ;  Seymour  Salomons  v.  Nissen,  2  T.  E,.  681. 

V.  Newton,  105  ib.  275 ;  Kitchener  v.  *  6  Bosw.  76. 
404 


CHAP.  XXXVII.]      RIGHT    OF   STOPPAGE   IN    TRANSITU.  [§  540. 

there  has  been  no  delivery  of  the  goods,  and  the  transferree  acts 
upon  the  faith  of  the  bill  of  lading,  he  necessarily  knows  that 
the  goods  are  in  transit,  and  that  if  not  paid  for,  they  are  sub- 
ject to  the  vendor's  right  to  stop  them  if  the  vendee  becomes 
insolvent.  It  would  not  therefore  be  inequitable  to  hold  that 
with  such  knowledge  and  knowledge  also  that  the  goods  have 
not  been  paid  for,  he  makes  his  advances  subject  to  the  ven- 
dor's right  and  does  so  voluntarily,  with  knowledge  of  all  the 
facts." 

Since,  however,  it  cannot  be  laid  down  as  a  general  rule  that 
a  third  party  may  not  honestly  take  an  assignment  of  a  bill  of 
lading,  although  he  may  know  that  the  goods  have  not  been 
paid  for,  the  better  rule  is  that  such  an  assignment  is  valid 
unless  the  assignee  takes  it,  having  notice  of  facts  which  make 
the  assignment  unfair  or  dishonest.^ 

§  538.  In  order  to  give  to  such  negotiation  of  the  bill  of 
lading  for  goods  in  transit  the  effect  of  destroying  or  limiting 
the  vendor's  right  to  stop  them,  it  is  not  necessary  that  the 
transaction  between  the  bill-holder  and  the  original  vendee 
should  have  been  an  ordinary  purchase  and  sale.  One  who 
makes  a  temporary  advance  to  the  vendee,  taking  the  bill  of 
lading  as  his  security,  or  one  who  by  any  similar  transaction 
becomes  a  technical  purchaser  for  value,  is  entitled  to  the  same 
rights  as  a  simple  buyer  of  the  goods.^ 

§  539.  The  fact  that  the  consideration  for  the  transfer  of  the 
bill  may  have  been  the  payment  of  an  antecedent  debt  does  not 
prevent  the  transferree  from  destroying  the  consignor's  right  to 
stop  the  goods.  The  law  was  so  laid  down  in  England,  in 
Leask  v.  Scott,^  in  which  the  court  refused  to  follow  a  preced- 
ing decision  to  the  contrary  effect  and  said  that  there  was  "  not 
a  trace  of  such  distinction  between  cases  of  past  and  present 
consideration  to  be  found  in  the  books." 

§  540.  A  fortiori  effect  of  the  transfer  is  not  impaired  by  the 

1  Canning  v.  Brown,  9  East,  409  ;  "  Leask  v.  Scott,  L.  R.  2  Q.  B. 
Salomons  v.  Nissen,  2  T.  E..  681.  Div.   3  76,   dissenting  from  Rodger  v. 

2  Becker  v.  Hallgarten,  86  N.  Y.  The  Comptoir  d'Escompte  de  Paris, 
167;  Dows  v.  Rush,  28  Barb.  157;  L.  R.  2  P.  C.  393;  Lee  v.  Kimball, 
Dows  V.  Greene,  24  N.  Y.  638 ;  Bios-  45  Me.  172. 

som  V.  Champion,  28  Barb.  217. 

405 


g  541,]  BILLS   OF   LADING.  [CHAP.  XXXVII. 

fact  that  the  consideration  for  the  sale  of  the  goods  is  actually- 
advanced  before  the  delivery  of  the  bill  of  lading,'  where,  al- 
thouo-h  the  goods  are  actually  in  the  hands  of  the  purchaser  or 
lender,  the  bill  of  lading  has  been  promised  and  is  a  part  of  the 
consideration  on  which  the  money  or  other  consideration  was 
advanced.  It  has  been  held,  that  in  order  to  defeat  a  defrauded 
vendor's  right  to  reclaim  his  goods,  the  purchaser  from  the 
fraudulent  vendee  must  have  taken  his  title  upon  the  faith  of 
such  a  title  in  the  vendee  as  is  evinced  by  possession  of  a  bill 
of  lading.^  In  Barnard  v.  Campbell,^  one  Jeffries  contracted, 
through  his  broker,  to  sell  to  the  defendants  1800  bags  of 
linseed.  Upon  the  day  when  the  contract  was  made  the  de- 
fendants, in  pursuance  thereof,  mailed  to  Jeffries  their  notes 
for  the  price,  which  were  received  by  hipi  and  immediately 
pledged  as  collateral  for  a  loan.  On  the  day  of  the  contract 
Jeffries  contracted  to  purchase  of  the  plaintiffs  1800  bags 
and  a  few  days  later  the  latter,  upon  the  fraudulent  represen- 
tations of  Jeffries,  caused  to  be  deliYered  to  him  1370  bags 
which  he  shipped  to  the  defendants  in  part  fulfilment  of  his 
contract  with  them,  forwarding  to  them  a  bill  of  lading  of 
the  goods  deliverable  to  them.  On  the  arrival  of  the  goods  the 
plaintiffs  demanded  them.  Their  claim  was  sustained  by  the 
court,  upon  the  ground  that  a  bonajide  purchaser  for  value  will 
not  be  given  preference  over  an  unpaid  vendor,  unless  he  has 
purchased  upon  the  faith  of  the  apparent  title  of  the  fraudulent 
vendee  and  his  right  to  dispose  of  the  property.  jSTotwithstand- 
ing  the  fact  that  the  court  in  this  case  expressed  itself  strongly 
in  opposition  to  the  rule  that  an  antecedent  debt  is  a  valuable 
consideration  for  a  transfer  of  the  bill,  as  that  rule  had  in  some 
of  the  cases  been  applied,  yet  the  decision  can  be  regarded  as 
going  no  further  than  to  affirm  the  principle  first  mentioned. 

§  541.  This  case  and  Becker  v.  Hallgarten^  clearly  mark  the  dis- 
tinction between  a  sale  of  any  goods  of  a  specified  kind,  where 
value  is  advanced  independently  by  the  purchaser,  with  no  con- 
templation of  receiving  a  particular  bill  of  lading  as  security, 
the  transfer  of  the  latter  being  a  distinctly  subsequent  trans- 

'  Becker  v.   Hallgarten,  86  N.  Y.        ^  53  ]^_  y    -3^ 
167.  3  86  N.  Y.  167. 

406 


CHAP.  XXXVII.]      RIGHT    OF   STOPPAGE   IN    TRANSITU.  [§  542. 

action  intended  to  shift  the  loss  incurred  by  the  fraud  of  the 
original  vendee,  at  the  pleasure  of  the  latter  and,  on  the  other 
hand,  a  purchase  of,  or  advance  upon,  particular  goods  on  the 
faith  of  an  apparent  title  to  them  in  the  original  vendee  con- 
ferred by  the  original  owner.  In  the  latter  case,  no  matter 
what  the  mode  in  which  the  apparent  title  to  the  goods  is 
created,  the  production  of  an  additional  indicium  of  ownership, 
in  the  shape  of  a  bill  of  lading,  is  unnecessary  and  its  transfer 
being  no  more  than  an  incident  of  the  purchase  may  be  made 
subsequently. 

§  542.  The  transfer  of  a  bill  of  lading  by  the  purchaser  of  the 
goods  as  mere  collateral  security  for  an  antecedent  debt,  without 
any  new  consideration,  does  not,  however,  constitute  the  trans- 
ferree  a  purchaser   for  value..»     The  transfer  may  operate  to 
defeat  the  right  of  stoppage  when  it  is  intended  as  the  payment 
of  an  antecedent  debt,"  but  it  cannot  have  such  effect  when 
made  merely  as  collateral  security  where  the  transfer  is  not 
made  as  an  absolute  satisfaction  of  a  past  debt,  the  advances  for 
which  the  transferree  claims  must  have  been  made  on  the  faith 
of  the  bill  of  lading ;   or,  on  the  faith  of  such  an   apparent 
title  as  might  be  evinced  by  a  bill  of  lading.     The  statement 
that  the  advance  of  the  money  or  value  and  the  indorsement 
of  the  bill  must  be  exactly  contemporaneous  acts,  is  not  borne 
out  by  the  decisions,  but  the  latter  clearly  show  that  the  pay- 
ment of  the  money  and  the  assignment  of  the  bill  must  be  so 
nearly  contemporaneous  as  to  leave  no  doubt  of  their  consti- 
tuting a  single  transaction.     Although  it  was  said  in  Ilolbrook 
V.  Vose^  that  an  advance  on  a  promise  by  the  borrower  to  pro- 
cure and  deliver  bills  of  lading  is  not  an  advance  on  the  faith 
of  the  bills,  the  language  of  the  court  must  be  limited  in  its 
application  to  the  particular  facts   of  the  case,  in   which   it 
appeared  in  evidence  that  the  transferrees  had  no  intention  of 
claiming  the  slightest  control  over   the  goods,  but  expected 
and  intended  that  they  should  continue  to  their  destination 
and  be  used  by  the  vendee  for  the  purpose  for  which  he  had 
purchased  them  ;  that  they  fully  expected  reimbursement  from 

1  Lo(3b  V.  Peters,  63  Ala.  243 ;  Hoi-         2  Lee  v.  Kimball,  45  Me.  172 
brook  V.  Vose,  6  Bosw.  76.  3  Barnard  v.  Campbell,  58  N.  Y.  73. 

407 


I  544.]  BILLS    OF   LADING.  [CHAP.  XXXVII. 

the  vendee  for  their  advance  and  expected  it  in  the  form  of 
payment  of  the  vendee's  notes,  which  they  held  as  their  prin- 
cipal security.  Where,  however,  it  is  clear  that  according  to 
the  intention  of  both  the  original  vendee  and  the  lender  the 
advance  is  made  upon  the  security  of  the  goods  and,  by  the  ex- 
press or  clearly  implied  terms  of  the  contract,  the  latter  are 
placed  within  the  lender's  control,  a  mere  delay  for  a  short 
time  in  delivering  to  the  latter  the  muniment  of  title  to  them 
cannot  change  the  transaction  into  an  assignment  of  collateral 
security.^ 

§  543.  The  satisfaction  of  a  past  debt  being  a  valuable  con- 
sideration sufficient  to  support  the  assignee's  title  against  a 
stoppage,  it  follows  a  fortiori  that  a  creditor's  forbearance  to 
bring  suit  or  his  release  of  the  vendee  from  an  obligation  to 
deposit  with  him  further  securities,  must  be  given  the  same 
effect.2 

§  544.  It  is  an  important  modification  of  the  principle  of 
Lickbarrow  v.  Mason,^  however,  that  the  right  of  stoppage  in 
transitu  is  not  discharged  absolutely  by  a  honajide  pledge  for  value 
of  the  bill  of  lading,  but  that  it  continues  in  the  vendor  as  at  least 
an  equitable  right,  subject  only  to  a  charge  in  favor  of  the  in- 
dorsee of  the  bill  and,  such  charge  being  paid  off,  the  vendor, 
having  claimed  the  right  of  stoppage,  will  be  held  entitled  to 
the  surplus  of  the  goods  or  their  proceeds.  The  right  of  stop- 
page is  a  right  to  stop  the  goods  and  not  to  defeat  some  imagi- 
nary interest  of  the  vendee.  It  cannot  be  asserted  against  a 
pledgee  who  has  advanced  value  upon  the  faith  of  the  bill, 
since  he  has  a  substantial  interest  in  both  law  and  equity.  The 
preservation  of  his  rights  cannot  however  operate  to  secure  for 
the  original  vendee  or  his  creditors,  liens  upon  the  goods  which 
the  vendor's  exercised  right  of  stoppage  would,  in  the  absence 
of  such  pledge,  have  unquestionably  prevented.^  The  con- 
signee's transfer  of  the  goods  for  the  limited  purpose  of  se- 

'  Durbrow  v.   McDonald,    5  Bosw.  ''  Spalding  u.  Kuding,  6Beav.  376; 

130;  Becker  v.  Hallgarten,  8G  N.  Y.  In  re  Westzinthus,  5  B.  &  Ad.   817; 

167.  Kemp  v.  Falk,  L.  R.  7  App.  C,  573; 

*  Chartered  Bank  v.  Henderson,  L.  Ex  parte  Davis,  L.  R.    13   Ch.  Div. 

R.  5  P.  C.  501.  628  ;   Coventry  v.  Gladstone,  L.  R.  6 

»  2  T.  R.  63 ;  1  H.  Bl.  357,  6  East,  21.  Eq.  44  ;  Chandler  v.  Fulton,  10  Tex.  2. 
408 


CHAP.  XXXVII.]      RIGHT    OP   STOPPAGE    IN   TRANSITU.  [§  546. 

curing  a  bona  fide  advance  upon  them,  will  not  be  permitted  in 
equity  to  serve  other  purposes  conflicting  with  the  rights  of 
the  consignor.  The  law  was  so  stated  in  Spalding  v.  Ruding,» 
where  a  bill  of  lading  for  goods  of  the  value  of  £1800  was  as- 
signed to  secure  an  advance  upon  them  of  £1000.  The  con- 
signee having  become  bankrupt,  the  holder  of  the  bill  claimed 
as  the  consignee's  factor  to  be  entitled  to  apply  the  proceeds  of 
the  goods  not  only  to  the  payment  of  the  £1000,  but  also  in 
satisfaction  of  the  balance  of  a  general  account  due  him  from 
the  consignee,  as  against  the  consignor's  right  to  stop  the 
goods.  It  was  held  that  he  was  entitled  to  no  more  than  the 
£1000  and  that  although  the  legal  right  to  the  goods  was 
transferred  with  the  bill  of  lading,  equity  would  regard  the 
transfer  as  a  pledge  or  mortgage  only,— the  attempted  stoppage 
giving  to  the  consignor  an  equitable  right  to  the  goods,  subject 
only  to  the  bill-holder's  lien  for  his  advance. 

§  545.  The  same  principle  is  well  illustrated  in  the  case 
of  Kemp  ?;.  I'alk,^  in  which,  after  the  consignee's  indorse- 
ment of  the  bill  of  lading  to  a  bank  to  secure  an  advance  and 
while  the  goods  were  still  in  transit,  the  consignees  sold  the 
goods  "  to  arrive"  to  sub-purchasers.  Before  delivery  to  the 
sub-purchasers  the  vendor  gave  notice  to  the  carrier  to  stop 
the  goods,— the  original  vendee  having  become  bankrupt.  The 
consignee  remitted  the  proceeds  of  the  sub-sales  to  the  bank, 
after  the  payment  of  the  advance,  of  which  the  balance  was 
held  to  belong  to  the  vendor.  An  attempt  to  distinguish  the 
case  from  Spalding  v.  Ending^  and  In  re  Westzinthus,"  on  the 
ground  of  the  original  purchaser's  sale  of  the  goods  "  to  ar- 
rive," without  any  document  of  title,  after  the  transfer  of  the 
the  bill,  was  unsuccessfully  made,  the  court  holding  that  the 
indorsement  of  the  bill  of  lading  to  the  bank  could  confer  no 
title  whatever  to  the  other  purchasers,  to  whom  the  consignee 
could  transfer  only  such  rights  as  he  himself  possessed  and  a 
right,  therefore,  which  was  subject  to  the  paramount  right  of 
the  unpaid  vendor. 

§  546.  It  is  a  necessary  corollary  of  the  principle  under  dis- 

^  6  Beavan,  376.  s  6  Beavan,  376. 

«  L.  R.  7  App.  C.  573.  "  5  B.  &  Ad.  817. 

409 


I  548.]  BILLS   OF   LADING.  [CHAP.  XXXVII. 

cussion  that  where  the  party  making  advances  to  the  vendee 
receives  as  security  therefor,  together  with  the  goods  described 
in  the  bill  of  lading,  other  goods  belonging  to  the  vendee,  the 
vendor  is  entitled  to  compel  the  appropriation  of  all  the  ven- 
dee's own  goods  to  the  satisfaction  of  the  pledgee's  claim  be- 
fore any  of  those  covered  by  the  bill  are  so  appropriated.^ 

§  547.  It  follows  that  to  give  effect  to  the  indorsement  of  a 
bill  of  lading  it  must  also  be  delivered  ;  that  where  there  is  no 
transfer  of  the  bill  the  vendor's  right  of  stoppage  is  not  de- 
feated. Although  during  the  transit  there  has  been  a  bona 
fide  purchase  of  the  goods  and  the  bill  of  lading  has  been  made 
out  in  the  name  of  the  sub-purchasers  but  not  transferred  to 
them,  the  unpaid  vendor  may  so  exercise  his  right  of  stoppage 
as  to  intercept  the  money  due  from  the  sub-purchasers.^ 

§  548.  N'ewhall  v.  Central  Pacific  Railroad  Company^  appears 
to  be  the  only  case  in  which  the  question  arose  as  to  whether 
the  bona  fide  indorsee  for  value  of  the  bill  of  lading  w^ould  be 
protected  where  notice  of  the  stoppage  had  been  given  to  the 
carrier  before  the  advance  was  made  and  the  indorsement  re- 
ceived. This  case  held  that  he  would  be  so  protected.  After 
remarking  that  counsel  had  failed  to  produce  a  single  adjudi- 
cated case  in  which  the  precise  question  had  been  decided  or 
discussed  and  after  reviewing  the  principles  applicable  in  the 
ordinary  case  where  assignment  of  the  bill  is  made  before  notice 
of  stoppage,  Mr.  Justice  Crockett  continued  :  "  Precisely  the 
same  principles,  in  my  opinion,  are  applicable  when  assignment 
is  made  after  the  carrier  is  notified  by  the  vendor.  Notwith- 
standing the  notice  to  the  carrier,  the  vendor's  lien  continues 
to  be  only  a  secret  trust  to  a  person  who  takes  an  assignment  of 
a  bill  of  lading  without  notice,  etc.  The  law  provides  no  method 
by  which  third  persons  are  to  be  affected  with  constructive  no- 
tice of  acts  transpiring  between  the  vendor  and  carrier  and  in 
dealing  with  the  vendee  whom  the  vendor  has  invested  with  the 
legal  title  and  apparent  ownership  of  the  goods,  a  stranger,  ad- 
vancing his  money  upon  the  strength  of  this  apparently  good 

^  In  re  Westzinthus,  5  B.  &  Ad.  *  Ex  parte  Golding  Davis,  L.  R.  13 

817;    Spalding    v.   Ruding,    6    Beav.  Ch.   628.      See  also  Lord  Blackburn, 

376  ;  Kemp  v.  Falk,  L.   R.   7   Ajjp.  in  Kemp  v.  Falk,  7  App.  Cas.  582. 

Cas.  573.  s  51  q^\   345^ 
410 


CHAP.  XXXVII.]      RIGHT    OF   STOPPAGE    IN    TRANSITU.  [§  548. 

title,  is  not  bound  at  his  peril  to  ascertain  whether  possibly  the 
vendor  may  not  have  notified  the  carrier — it  may  be  on  some 
remote  portion  of  the  route — that  the  goods  are  stopped  in 
transitu." 

While  the  soundness  of  this  decision  has  been  doubted,  yet 
it  is  based  upon  the  principle  which  prefers  the  rights  of  trans- 
ferrees  and  indorsees  (when  all  the  circumstances  of  the  transfer 
are  contemporaneous  and  form  but  one  transaction  based  upon 
the  bill  then  in  the  possession  of  the  original  vendee),  where 
the  transfer  of  the  bill  is  actually  made  for  a  valuable  considera- 
tion and  in  good  faith,  upon  the  strength  of  the  title  to  the 
possession  of  the  goods  which  is  evinced  by  the  actual  possession 
of  the  bill  of  lading  by  the  original  vendee. 

411 


550.] 


BILLS   OF   LADING. 


CHAP.  XXXVIII. 


CHAPTER  XXXVIII. 

THE  UNIFORM  BILL  OF  LADING— ITS  GROWTH  AND 
ADOPTION. 


The  growth  of  the  Uniform  Bill,  §  549. 
The  originators  of  the  Uniform  Bill, 
§§550,  551. 


The  benefits  resulting  from  a  uniform 

bill,  §  552. 
Form  of  the  Uniform  Bill,  §  553. 


§  549.  The  growth  of  the  bill  of  lading  in  importance  has 
been  rapid.  Its. development  has  been  varied.  Each  railroad,  • 
transportation  company,  or  water  carrier  has  from  time  to  time 
adopted  a  form  of  bill  of  lading  of  its  owm.  The  character  of 
the  service  performed  by  the  various  carriers  gave  a  greater 
importance  to  some  one  or  more  limitations  or  conditions  of  the 
bill  than  that  performed  by  others.  Thus  a  large  number  of 
forms  came  into  use  and  many  difficulties,  involving  the  carriers 
not  only  but  the  shippers  as  well,  have  continually  arisen  by 
reason  of  the  variation  in  the  forms. 

§  550.  A  number  of  years  ago  it  became  apparent  to  the  large 
carrying  companies  that  great  good  would  be  accomplished  by 
the  adoption  of  a  uniform  bill  of  lading  for  use  throughout  the 
United  States.  The  work  of  preparing  such  a  bill  which  would 
meet  all  the  requirements  of  the  various  companies  was  begun. 
It  was  a  difficult  task  and  within  the  years  1889  and  1890  the 
result  of  the  labor  first  began  to  be  felt.  In  June,  1890,  a  circular 
was  issued  by  the  Chairman  and  Vice-Chairma.n  of  the  Joint 
Committee  of  the  Trunk  Line  and  The  Central  Traffic  Associa- 
tion, in  which  notice  was  given  of  the  adoption  of  a  uniform  bill 
of  lading  by  the  carriers  constituting  these  associations,  to  be  put 
in  force  July  1,  1890.  This  bill  was  designed  for  use  on  either 
rail  or  water  lines,  or  on  lines  including  both  rail  and  water 
service.  Such  a  bill  was  regarded  as  necessary  inasmuch  as 
rail  carriers  receive  much  property  for  transportation  to  places 
accessible  only  by  a  river,  lake,  or  ocean  movement  on  some 
part  of  the  through  route. 
412 


CHAP.  XXXVIIl.]  UNIFORM    BILL    OF   LADING.  [§  553. 

^  §  551.  The  carriers  represented  in  the  Trunk  Line  Associa- 
tion,  the  Central  Traffic  Association,  the  Southern  Kailway  and 
Steamship  Association,  the  Coast  Steamship  Association  and 
Associated  Lake  and  Rail  Lines,  united  in  appointing  committees 
to  serve  on  a  permanent  committee  on  uniform  bills  of  lading. 
This  permanent  committee  now  has  referred  to  it  all  questions 
respecting  bills  of  lading  and  auxiliary  forms  and  in  the  first 
instance  recommends  the  action  to  be  taken  in  regard  thereto 
by  the  carrying  companies. 

§  552.  It  need  hardly  be  said  that  good  will  be  accomplished  by 
the  universal  adoption  of  one  form  of  bill  of  lading.  The  shipper 
need  not  scrutinize  the  various  and  innumerable  conditions  at 
the  time  of  each  shipment  in  order  to  protect  himself  against 
the  imposition  of  any  improper  condition  or  limitation  of  lia- 
bility. The  carrier  accepting  through  shipments  will  know  the 
terms  of  the  contract  of  carriage  without,  in  each  case,  being 
compelled  to  ascertain  the  form  used  by  the  particular  company 
issuing  the  original  bill.  The  consignee  on  being  informed  that 
he  is  to  receive  a  bill  of  lading  will  know  what  his  rights  there- 
under are  and  last,  but  far  from  least,  the  lender  of  money  on 
the  faith  of  bills  of  lading  will  be  able  to  make  his  advances 
upon  a  better  security  and  with  a  well-founded  confidence  that 
the  instrument  contains  only  those  terms  which  are  ordinary 
and  usual. 

§  553.  It   has  been   deemed  wise  to   insert   in  the  text  the 
following  copy  of  what  is  now  known  as 

THE  UNIFORM  BILL  OF  LADING. 

Received  189         from 

^7  tb^'  Company,  the  property  described  below,  in  apparent 

good  order,  except  as  noted  (contents  and  condition  of  contents  of  packao'es 
unknown),  marked,  consigned,  and  destined  as  indicated  below,  which  said 
company  agrees  to  carry  to  the  said  destination,  if  on  its  road,  or  its  portion  of 
the  through  route,  otherwise  to  deliver  to  another  carrier  on  the  route  to  said 
destination.  It  is  mutually  agi-eed,  in  consideration  of  the  rate  of  freight  here- 
inafter named,  as  to  each  carrier  of  all  or  any  of  said  property  over  all  or  any 
portion  of  said  route  to  destination,  and  as  to  each  party  at  any  time  interested 
in  all  or  any  of  said  property,  that  every  service  fo  be  performed  hereunder 
shall  be  subject  to  all  the  conditions,  whether  printed  or  written,  herein  con- 
tained, and  which  are  hereby  agreed  to  by  the  shipper  and  by  him  accepted  for 
himself  and  his  assigns  as  just  and  reasonable. 

413 


I  553.]  BILLS   OF    LADING.  [CHAP.  XXXVIII. 


CONDITIONS. 

1.  No  carrier  or  party  in  possession  of  all  or  any  of  the  property  therein 
described,  shall  be  liable  for  any  loss  thereof  or  damage  thereto,  by  causes 
bevond  its  control ;  or  by  floods  or  by  fire  from  any  cause  or  wheresoever  occur- 
ring ;  or  by  riots,  strikes,  or  stoppage  of  labor  ;  or  by  leakage,  breakage,  chafing, 
loss  in  weight,  changes  in  weather,  heat,  frost,  wet,  or  decay;  or  from  any 
cause  if  it  be  necessary  or  is  usual  to  carry  such  property  upon  open  cars. 

2.  No  carrier  is  bound  to  carry  said  property  by  any  particular  train  or  vessel, 
or  in  time  for  any  particular  market,  or  otherwise  than  with  as  reasonable  de- 
spatch as  its  general  business  will  permit.  Every  carrier  shall  have  the  right,  in 
case  of  necessity,  to  forward  said  property  by  any  railroad  or  route  between  the 
point  of  shipment  and  the  point  to  which  the  rate  is  given. 

3.  No  carrier  shall  be  liable  for  loss  or  damage  not  occurring  on  its  own  road 
or  its  portion  of  the  through  route,  nor  after  said  property  is  ready  for  delivery 
to  the  next  carrier  or  to  consignee.  The  amount  of  any  loss  or  damage  for 
which  any  carrier  becomes  liable  shall  be  computed  at  the  value  of  the  property 
at  the  place  and  time  of  shipment  under  this  bill  of  lading,  unless  a  lower  value 
has  been  aur^ed  upon  or  is  determined  by  the  classification  upon  which  the  rate 
is  based,  in  either  of  which  events  such  lower  value  shall  be  the  maximum  price 
to  govern  such  computation.  Claims  for  loss  or  damage  must  be  made  in 
writing  to  the  agent  at  point  of  delivery  promptly  after  arrival  of  the  property, 
and  if  delayed  for  more  than  thirty  days  after  the  delivery  of  the  property,  or 
after  due  time  for  the  delivery  thereof,  no  carrier  hereunder  shall  be  liable  in 
any  event. 

4.  All  property  shall  be  subject  to  necessary  cooperage  or  baling  at  owner's 
cost.  Each  carrier  over  whose  route  cotton  is  to  be  carried  hereunder  shall 
have  the  privilege,  at  its  own  cost,  of  compressing  the  same  for  greater  conve- 
nience in  handling  and  forwarding,  and  shall  not  be  held  responsible  for  un- 
avoidable delays  in  procuring  such  compression.  Grain  in  bulk  consigned  to  a 
point  where  there  is  an  elevator  may  (unless  otherwise  expressly  noted  herein, 
and  then  if  it  is  not  promptly  unloaded)  be  there  delivered,  and  placed  with 
other  grain  of  same  kind,  without  respect  to  ownership,  and  if  so  delivered  shall 
be  subject  to  a  lien  for  elevator  charges  in  addition  to  all  other  charges  here- 
under. No  carrier  shall  be  liable  for  differences  in  weights  or  for  shrinkage  of 
any  grain  or  seed  carried  in  bulk. 

5.  Property  not  removed  by  the  person  or  party  entitled  to  receive  it  within 
twenty-four  hours  after  its  arrival  at  destination,  may  be  kept  in  the  car,  depot, 
or  place  of  delivery  of  the  carrier,  at  the  sole  risk  of  the  owner  of  said  property, 
or  may  be,  at  the  option  of  the  carrier,  removed  and  otherwise  stored  at  the 
owner's  risk  and  cost,  and  there  held  subject  to  lien  for  all  freight  and  other 
charges.  The  delivering  carrier  may  make  a  reasonable  charge  per  day  for  the 
detention  of  any  car  and  for  use  of  track  after  the  car  has  been  held  forty-eight 

414 


CHAP.  XXXVIII.]  UNIFORM    BILL    OF   LADING.  [§  553. 

hours  for  unloading,  and  may  add  such  charge  to  all  other  charges  hereunder, 
and  hold  said  property  subject  to  a  lien  therefor.  Property  destined  to  or  taken 
from  a  station  at  which  there  is  no  regularly  appointed  agent,  shall  be  entirely 
at  risk  of  owner  when  unloaded  from  cars,  or  until  loaded  into  cars  ;  and  when 
received  from  or  delivered  on  private  or  other  sidings,  shall  be  at  owner's  risk 
until  the  ears  are  attached  to,  and  after  they  are  detached  from,  trains. 

6.  No  can-ier  hereunder  will  carry,  or  be  liable  in  any  way  for,  any  docu- 
ments, specie,  or  for  any  article  of  extraordinary  value  not  specifically  rated  in 
the  publislied  classifications,  unless  a  special  agreement  to  do  so,  and  a  stipulated 
value  of  the  articles,  are  indorsed  hereon. 

7.  Every  party,  whether  principal  or  agent,  shipping  inflammable,  explosive, 
or  dangerous  goods,  without  previous  full  written  disclosure  to  the  carrier  of 
their  nature,  shall  be  liable  for  all  loss  or  damage  caused  thereby,  and  such 
goods  may  be  warehoused  at  owner's  risk  and  expense  or  destroyed  without 
compensation. 

8.  Any  alteration,  addition,  or  erasure  in  this  bill  of  lading  which  shall  be 
made  without  the  special  notation  hereon  of  the  agent  of  the  carrier  issuing  this 
bill  of  lading  shall  be  void.  ^ 

9.  If  the  word  "order"  is  written  hereon  immediately  before  or  after  the 
name  of  the  party  to  whose  oraer  the  property  is  consigned,  without  any  con- 
dition or  limitation  other  than  the  name  of  a  party  to  be  notified  of  the  arrival 
of  the  property,  the  surrender  of  this  biU  of  lading  properly  indorsed  shall  be 
required  before  the  delivery  of  the  property  at  destination.  If  any  other  than 
the  aforesaid  form  of  consignment  is  used  herein,  the  said  properfy  may,  at  the 
option  of  the  carrier,  be  delivered  without  requiring  the  production  or  surrender 
of  this  bill  of  ladinor. 

10.  Owner  or  consignee  shall  pay  freight  at  the  rate  below  stated,  and  all 
other  charges  accruing  on  said  property,  before  delivery,  and  according  to  weights 
as  ascertained  by  any  carrier  hereunder;  and  if  upon  inspection  it  isliscertafned 
that  the  articles  shipped  are  not  those  described  in  this  bill  of  lading,  the  freight 
charges  must  be  paid  upon  the  articles  actually  shipped,  and  at  the  rates  a°nd 
under  the  rules  provided  for  by  published  classifications. 

11.  If  all  or  any  part  of  said  property  is  carried  by  water  over  any  part  of 
said  route,  such  water  carriage  shalL  be  performed  subject  to  the  conditions, 
whether  printed  or  written,  contained  in  this  bill  of  lading,  including  the  condi- 
tion that  no  carrier  or  party  shall  be  liable  for  any  loss  or  damage  resulting  from 
the  perils  of  the  lakes,  sea,  or  other  waters ;  or  from  explosion,  bursting  of 
boilers,  breakage  of  shafts,  or  any  latent  defect  in  hull,  machinery,  or  appurte- 
nances;  or  from  collision,  stranding,  or  other  accidents  of  navigation;  or  from 
the  prolongation  of  the  voyage.  And  any  vessel  carrying  any  or  all  of  the 
property  herein  described  shall  have  liberty  to  call  at  intermediate  ports;  to 
tow  and  be  towed,  and  to  assist  vessels  in  distress,  and  to  deviate  for  the  pur- 
pose of  saving  life  or  property.     And  any  carrier  by  water  liable  on  account 

.415 


553.] 


BILLS   OF   LADING. 


[chap.  XXXVIII. 


of  loss  of  or  damage  to  any  of  said  property  shall  have  the  full  benefit  of  any 
insurance  that  may  have  been  effected  upon  or  on  account  of  said  property. 

Upon  all  the  conditions,  whether  printed  or  written,  herein  contained,  it  is 
mutually  agreed  that  the  rate  of  freight  from  to  is  to  be— 


In  Cents  Pee  100  Lbs. 

If  Special. 

If  —  times, 
first  class. 

If  first 
class. 

If  second 
class. 

If  third 
class. 

If  fourth 
class. 

If  fifth 
class. 

If  sixth 
class. 

Article. 

Rate. 

Per 

i 

And  advanced  charges  at 


Weight. 
Marks,  Consignees  and  Destination.      Description  of  articles,     gubject  to  Correction. 


Agent. 


Per 


416 


ADDENDA. 

LEGISLATIO]^  OF  THE  DIFFERENT  STATES  AFFECTING 
BILLS  OF  LADING. 


ALABAMA. 

[Civil  Code  of  Alabama,  1886,  page  306.] 

§  1174.  Warehousemen  or  common  carriers  to  give  receipt  or 
bill  of  lading  ;  if  given  for  cotton,  must  state  condition  of  bagging, 
ropes  or  ties. — Warehousemen  or  common  carriers  receiving  things  or 
property  of  any  kind  for  safe-keeping,  or  for  carriage,  for  hire  or  reward, 
must,  on  the  delivery  to  them  of  such  things  or  property,  give  the  per- 
son from  whom  received  a  bill  of  lading,  stating  the  order  or  condition 
in  which  such  things  or  property  may  be,  and  if  cotton  in  bales  is  re- 
ceived, state  expressly  the  condition  of  the  bagging,  ropes,  or  ties ; 
and  such  warehouseman  or  common  carrier  is  bound  to  deliver  in 
like  order  and  condition  as  when  received ;  and  if  such  receipt  or  bill 
of  lading  be  not  given,  such  things  or  property  must  be  deemed  and 
taken  to  have  been  in  good  order  or  condition  at  the  time  of  delivery 
to  such  warehouseman  or  carrier,  and  he  is  bound  to  delivery  in  like 
good  order  and  condition ;  and  the  warehouseman  or  carrier,  neglect- 
ing or  failing  to  give  such  receipt  or  bill  of  lading,  is  liable  for  all 
loss  or  damages  the  owner  of  such  things  or  property  may  sustain  in 
consequence  of  such  neglect  or  failure ;  but  nothing  in  this  section 
contained  must  be  construed  as  affecting  the  common  law  liability  of 
a  warehouseman  or  of  a  common  carrier  for  an  injury  to,  or  for  the 
loss  of  such  things  or  property. 

§  1175.  Receipt  of  bill  of  lading  ;when  not  to  be  given. — A  ware- 
houseman, common  carrier,  or  a  wharfinger,  or  other  person  engaged 
in  the  business  of  storage,  carriage,  or  of  keeping  for  shipment,  or  of 
forwarding  things  or  property,  must  not  give  a  receipt  or  bill  of 
lading  for  the  things  or  property  for  storage,  for  carriage,  or  for 
keeping  for  shipment,  or  for  forwarding,  unless  such  things  or  pro- 
27  417 


BILLS   OF   LADING. 

perty  have  been  actually  delivered  to  him,  or  placed  under  his  con- 
trol ;  and  a  second  receipt  or  bill  of  lading  must  not  be  issued  or 
given,  the  original  being  outstanding,  without  writing  across  the  face 
thereof  the  word  "duplicate." 

§  1176.  (Which  is  §  5  of  Act  of  12th  December,  1884).  Delivery 
to  cotton  compress. — A  delivery  of  cotton  at  or  to  a  compress  for  the 
purpose  of  being  compressed,  at  the  instance,  or  in  the  usual  course 
of  business  of  a  warehouseman,  common  carrier,  wharfinger  or  other 
person  engaged  in  the  business  of  storage,  or  of  carriage,  or  of  keeping 
for  shipment,  or  of  forwarding,  may  be  taken  and  deemed  as  an  actual 
delivery  to  such  warehouseman,  carrier,  wharfinger,  or  other  person, 
and  therefor  a  receipt  or  bill  of  lading  may  be  issued  or  given. 

§  im.  (Which  is  Act  of  February  21st,  1881,  p.  33,  Sect.  4.) 
Sale,  etc.,  by  warehouseman,  carrier  or  wharfinger. — A  warehouse- 
man, common  carrier,  wharfinger,  or  other  person  engaged  in  the 
business  of  storage,  carriage,  or  of  keeping  for  shipment,  or  of  for- 
M^arding  things  or  property,  must  not  otherwise  than  is  authorized 
by  law,  or  by  the  contract  of  delivery  to  them,  make  sale  of  things 
or  property  entrusted  to  them  ;  nor,  without  the  assent  in  writing  of 
the  person  to  whom  they  may  have  given  a  receipt  or  bill  of  lading, 
or  of  the  legal  holder  of  such  receipt  or  bill  of  lading,  incumber  or 
transfer  the  same ;  nor  must  they,  otherwise  than  as  may  be  author- 
ized by  the  contract  of  delivery  to  them,  part  with  the  control  or 
possession  of  such  things  or  property,  without  the  assent  in  writing 
of  the  person  to  whom  they  may  have  given  a  receipt  or  bill  of  lading, 
or  of  the  legal  holder  of  such  receipt  or  bill  of  lading. 

§  1179.  False  or  second  receipts,  or  delivery  without  cancella- 
tion or  indorsement  of  partial  delivery. — If  any  common  carrier, 
not  having  received  things,  or  property  for  carriage,  shall  give  or 
issue  a  bill  of  lading,  or  receipt,  as  if  such  things  or  property  had 
been  received,  or  any  warehouseman,  or  wharfinger,  or  person  en- 
gaged in  the  business  of  storage,  or  keeping  for  shipment,  or  forward- 
ing, shall  issue  a  receipt  for  things  or  property,  not  having  received 
them  ;  or  if  any  of  such  parties  shall  give  or  issue  a  second  bill  of 
lading,  or  receipt,  the  original  being  outstanding,  not  expressing  in 
such  second  bill  of  lading,  or  receipt,  that  it  is  a  duplicate,  or  shall 
surrender  such  things  or  property  without  receiving  and  cancelling 
the  bill  of  lading  or  receipt  issued  therefor,  or  make  partial  delivery 
without  indorsing  such  partial  delivery  on  such  bill  of  lading  or  re- 
ceipt, except  as  provided  in  Section  1178,  such  carrier,  warehouse- 
man, wharfinger,  or  person  is  liable  to  any  person  injured  thereby 
for  all  damages,  immediate  or  consequential,  therefrom  resulting. 
418 


ADDENDA. 


ARIZONA. 

[Revised  Statutes,  1887,  page  743,  §§  900—903.] 

§  900.  Issuing  fictitious  hill. — Every  person,  being  the  master, 
owner,  or  agent  of  any  vessel,  or  officer  or  agent  of  any  railroad, 
express  or  transportation  company,  otherwise  being  or  representing 
any  carrier,  who  delivers  any  bill  of  lading,  receipt,  or  other  voucher, 
by  which  it  appears  that  any  merchandise  of  any  description  has  been 
shipped  on  board  any  vessel  or  delivered  to  any  railroad,  express  or 
transportation  company,  or  other  carrier,  unless  the  same  has  been 
so  shipped  or  delivered,  and  it  is  at  the  time  actually  under  the  con- 
trol of  such  carrier,  or  the  master,  owner  or  agent  of  such  vessel,  or 
of  some  officer  or  agent  of  such  company,  to  be  forwarded  as  expressed 
in  such  bill  of  lading,  receipt  or  voucher,  is  punishable  by  imprison- 
ment in  the  territorial  prison  not  exceeding  five  years,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  both. 

§  901.  Issuing  bill  when  goods  are  not  upon  premises. — Every 
person  carrying  on  the  business  of  a  warehouseman,  wharfinger,  or 
other  depositary  of  property,  who  issues  any  receipt,  bill  of  lading, 
or  other  voucher  for  any  merchandise  of  any  description,  which  has 
not  been  actually  received  upon  the  premises  of  such  person,  and  is 
not  under  his  actual  control  at  the  time  of  issuing  such  instrument, 
whether  such  instrument  is  issued  to  a  person  as  being  the  owner  of 
such  merchandise,  or  as  security  for  any  indebtedness,  is  punishable 
by  imprisonment  in  the  territorial  prison  not  exceeding  five  years,  or 
by  a  fine  not  exceeding  $1000,  or  both. 

§  902.  Erroneous  hill,  issued  in  good  faith. — No  person  can  be 
convicted  of  an  offence  under  the  last  two  sections  by  reason  of  the 
contents  of  any  barrel,  box,  case,  cask,  or  other  vessel  or  package 
mentioned  in  the  bill  of  lading,  receipt  or  other  voucher,  did  not  cor- 
respond with  the  description  given  in  such  instrument  of  the  mer- 
chandise received,  if  such  description  corresponded  substantially  with 
the  marks,  labels  or  brands  upon  the  outside  of  such  vessel  or  pack- 
age, unless  it  appears  that  the  accused  knew  that  such  marks,  labels 
or  brands  were  untrue. 

§  903.  Dujilicate  hill,  etc. — Every  person  mentioned  in  this  chap- 
ter who  issues  any  second  or  duplicate  receipt  or  voucher  of  a  kind 
specified  therein,  at  a  time  while  any  former  receipt  or  voucher  for 
the  merchandise  specified  in  such  second  receipt  is  outstanding  and 
uncancelled,  without  writing  across  the  face  of  the  same  the  word 
"duplicate,"  in  a  plain  and  legible  manner,  is  punishable  by  impris- 

419 


BILLS   OF   LADING. 


onment  in  the  territorial  prison  not  exceeding  five  years,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  both. 


ARKANSAS. 

[Acts  1887,  page  84.] 

An  Act  to  Regulate  the  Duties  of  Warehousemen,  Transportation  Companies 
and  Others. 


Section 

1.  Not  to  issue  receipts  until  goods 

are  under  his  control. 

2.  Not  to  issue  receipts  for  money 

loaned  unless  goods  are  actu- 
ally received. 

3.  How  duplicate   receipts   are  is- 

sued. 

4.  Not  to  ship  goods,  etc.,  without 

the  written  assent  from  party 
holding  receipt. 

5.  Master  or  other   person   not   to 

give  bill  of  lading,  etc.,  un- 
less actually  shipped. 


Section 

6.  Receipts  of  warehousemen,  etc., 

for  goods,  made  negotiable. 

7.  How  transferable. 

8.  Violation  deemed  criminal ;  pen- 

alty—  Damages  ;  how  recov- 
ered. 

Applies  to  bills  of  lading. 

Preceding  sections  to  apply  to 
property  removed  by  process 
of  law. 

Conflicting  laws  repealed ;  Act 
in  force  from  passage. 


9. 
10. 


11. 


Be  it  enacted  hy  the  General  Assembly  of  the  State  of  Arkansas: 
Section  1.  That  no  warehouseman,  wharfinger  or  other  person  shall 
issue  any  receipt  or  voucher  for  any  goods,  wares,  merchandise,  cot- 
ton, grain,  flour  or  other  produce  or  commodity  to  any  person  or 
persons  purporting  to  be  the  holder  or  holders,  owner  or  owners 
thereof,  unless  such  goods,  wares,  merchandise,  cotton,  grain,  flour 
or  other  produce  or  commodity  shall  have  been  actually  received  into 
the  store  or  upon  the  premises  of  such  warehouseman,  wharfinger  or 
other  person,  and  shall  be  in  the  store  or  on  the  premises  aforesaid, 
and  under  his  control  at  the  time  of  issuing  such  receipt. 

Sec.  2.  That  no  warehouseman,  wharfinger  or  other  person  shall 
issue  any  receipt  or  other  voucher  upon  any  goods,  wares,  merchan- 
dise, cotton,  grain,  flour  or  other  produce  or  commodity  to  any  per- 
son or  persons  for  any  money  loaned  or  other  indebtedness,  unless 
such  goods,  wares,  merchandise,  cotton,  grain,  flour  or  other  produce 
or  commodity  shall  be,  at  the  time  of  issuing  such  receipt,  in  the  cus- 
tody of  such  warehouseman,  wharfinger  or  other  person,  and  shall  be 
in  store  or  upon  the  premises  and  under  his  control  at  the  time  of 
issuing  such  receipt  or  other  voucher  as  aforesaid. 

Sec.  3.  That  no  warehouseman,  wharfinger  or  other  person  shall 
issue  any  second  or  duplicate  receipt  for  any  goods,  wares,  merchan- 
420 


ADDENDA. 

dise,  cotton,  grain,  flour  or  other  produce  or  commodit}^,  while  any 
former  receipt  for  such  goods,  wares,  merchandise,  cotton,  grain, 
flour  or  other  produce  or  commodity,  as  aforesaid,  or  any  part  there- 
of, shall  be  outstanding  and  uncancelled,  without  writing  across  the 
face  of  the  same  "duplicate." 

Sec.  4.  That  no  warehouseman,  wharfinger  or  other  person  shall 
sell  or  incumber,  ship  or  transfer,  or  in  any  manner  remove,  or  per- 
mit to  be  shipped,  transferred  or  removed  beyond  his  control  any 
such  goods,  wares,  merchandise,  cotton,  grain,  flour  or  other  produce 
or  commodity,  for  which  a  receipt  shall  have  been  given  by  him,  as 
aforesaid,  whether  received  for  storing,  shipping,  grinding,  manufac- 
turing or  other  purpose,  without  the  written  assent  of  the  person  or 
persons  holding  such  receipt. 

Sec.  5.  That  no  master,  owner  or  agent  of  any  boat  or  vessel  of 
any  description,  forwarder  or  officer  or  agent  of  any  railroad,  transfer 
or  transportation  company,  or  other  person  shall  sign,  or  give  away 
any  bill  of  lading,  receipt  or  other  voucher  or  document  for  any  mer- 
chandise or  property  by  which  it  shall  appear  that  such  merchandise 
or  property  has  been  shipped  on  board  of  any  boat,  vessel,  railroad 
car  or  other  vehicle,  unless  the  same  shall  have  been  actually  shipped 
and  put  on  board,  and  shall  be  at  the  time  actually  on  board  or  de- 
livered to  such  boat,  vessel,  car  or  other  vehicle,  or  to  the  owner  or 
owners  thereof,  or  his  or  their  agent  or  agents,  to  be  carried  and 
conveyed  as  expressed  in  such  bill  of  lading,  receipt  or  other  voucher 
or  document. 

Sec.  6.  That  all  receipts  issued  or  given  by  any  warehouseman, 
wharfinger,  or  other  person  or  firm,  and  all  bills  of  lading,  transpor- 
tation receipts,  and  contracts  of  affreightment  issued  or  given  by  any 
person,  boat,  railroad,  transportation  or  transfer  company  for  goods, 
wares,  merchandise,  cotton,  grain,  flour,  or  other  produce  or  com- 
modity, shall  be  and  are  hereby  made  negotiable  by  written  indorse- 
ment thereon,  and  delivery  in  the  same  manner  as  bills  of  exchange 
and  promissory  notes ;  and  no  printed  or  written  conditions,  clauses, 
or  provisions  inserted  in  or  attached  to  any  such  receipts,  bills  of 
lading  or  contracts,  shall  in  any  way  limit  the  negotiability,  or  affect 
any  negotiation  thereof,  nor  in  any  manner  impair  the  right  and 
duties  of  the  parties  thereto,  or  persons  interested  therein  ;  and  every 
such  condition,  clause,  or  provision  purporting  to  limit  or  affect  the 
rights,  duties,  or  liabilities  created  or  declared  in  this  act,  shall  be 
void  and  of  no  force  or  effect. 

Sec.  iT.  That  warehouse  receipts  given  by  any  warehouseman, 
wharfinger,  or  other  person  or  firm,  for  any  goods,  wares,  merchan- 

421 


BILLS   OF   LADING. 

dise,  cotton,  grain,  flour,  or  other  produce  or  commodity,  stored  or 
deposited,  and  all  bills  of  lading  and  transportation  receipts  of  every 
kind  given  by  any  carrier,  boat,  vessel,  railroad,  transportation  or 
transfer  company,  may  be  transferred  by  indorsement  in  writing 
thereon,  and  the  delivery  thereof  so  indorsed,  and  any  and  all  persons 
to  whom  the  same  may  be  transferred  shall  be  deemed  and  held  to  be 
the  owner  of  such  goods,  wares,  merchandise,  cotton,  grain,  flour  or 
other  produce  or  commodity,  so  far  as  to  give  validity  to  any  pledge, 
lien,  or  transfer  given,  made  or  created  thereby,  as  on  the  faith  thereof, 
and  no  property  so  stored  or  deposited,  as  specified  in  such  bills  of 
lading  or  receipts,  shall  be  delivered  except  on  surrender  and  cancel- 
lation of  such  receipts  and  bills  of  lading :  Provided,  however,  that 
all  such  receipts  and  bills  of  lading  which  shall  have  the  words  "  not 
negotiable,"  plainly  written  or  stamped  on  the  face  thereof,  shall  be 
exempt  from  the  provisions  of  this  act. 

Sec.  8.  That  any  warehouseman,  wharfingef,  forwarder,  or  other 
person  who  shall  violate  any  of  the  provisions  of  this  act  shall  be 
deemed  guilty  of  a  criminal  offence,  and  upon  indictment  and  convic- 
tion shall  be  fined  in  any  sum  not  exceeding  five  thousand  dollars,  or 
imprisoned  in  the  penitentiary  of  this  State  not  exceeding  five  years, 
or  both ;  and  all  and  every  person  or  persons  aggrieved  by  the  viola- 
tion of  any  of  the  provisions  of  this  act  may  have  and  maintain  an 
action  at  law  against  the  person  or  persons,  corporation  or  corpora- 
tions violating  any  of  the  provisions  of  this  act,  to  recover  all  damages 
which  he  or  they  may  have  sustained  by  reason  of  any  such  violation 
as  aforesaid,  before  any  court  of  competent  jurisdiction,  whether  such 
person  or  persons  shall  have  been  convicted  of  fraud  as  aforesaid  under 
this  act  or  not. 

Sec.  9.  All  the  provisions  of  this  act  shall  apply  to  bills  of  lading, 
and  to  all  persons  or  corporations,  their  agents  or  servants,  that  shall 
or  may  issue  bills  of  lading  of  any  kind  or  description,  the  same  as  if 
the  words  "forwarder"  and  "  bills  of  lading"  were  mentioned  in  every 
section  of  said  act. 

Sec.  10.  So  much  of  the  preceding  sections  of  this  act  as  forbids 
the  delivery  of  property  except  on  surrender  and  cancellation  of  the 
original  receipt  or  bill  of  lading,  or  the  indorsement  of  such  delivery 
thereon  in  case  of  partial  delivery,  shall  not  apply  to  property  reple- 
vied or  removed  by  operation  of  law. 

Sec.  11.  All  laws  and  parts  of  laws  in  conflict  with  this  act  be 
and  the  same  are  hereby  repealed,  and  this  act  shall  take  effect  and 
be  in  force  from  and  after  its  passage. 

Approved  March  15,  1887. 
422 


ADDENDA. 


CALIFORNIA. 

[During's  Annotated  Codes  and  Statutes,  page  361.] 
§  2126.  Definition  of  hill  of  lading.— A.  bill  of  lading  is  an  in- 
strument in  writing,  signed  by  a  carrier  or  his  agent,  describing  the 
freight  so  as  to  identify  it,  stating  the  name  of  the  consignor,  the 
terms  of  the  contract  for  carriage,  and  agreeing  or  directing  that  the 
freight  be  delivered  to  the  order  or  assigns  of  a  specified  person  at  a 
specified  place. 

§  2127.  Bill  of  lading  negotiaMe.— AW  the  title  to  the  freight 
which  the  first  holder  of  a  bill  of  lading  had  when  he  received  it 
passes  to  every  subsequent  indorsee  thereof  in  good  faith  and  for 
value,  in  the  ordinary  course  of  business,  with  like  effect  and  in  like 
manner  as  in  the  case  of  a  bill  of  exchange. 

§  2128.  /Same.— When  a  bill  of  lading  is  made  to  bearer,  or  in 
equivalent  terms,  a  simple  transfer  thereof,  by  delivery,  conveys  the 
same  title  as  an  indorsement. 

§  2129.  Effect  of  bill  of  lading  on  rights,  etc.,  of  carrier.— 
A  bill  of  lading  does  not  alter  the  rights  or  obligations  of  the  carrier, 
as  defined  in  this  chapter,  unless  it  is  plainly  inconsistent  therewith. 
§  2130.  Bill  of  lading  to  be  given  to  consignor.— A  carrier  must 
subscribe  and  deliver  to  the  consignor,  on  demand,  any  reasonable 
number  of  bills  of  lading,  of  the  same  tenor,  expressing  truly  the 
original  contract  for  carriage ;  and  if  he  refuses  to  do  so,  the  con- 
signor may  take  the  freight  from  him,  and  recover  from  him,  besides, 
all  damage  thereby  occasioned. 

§  2131.  Carrier  exonerated  bij  delivering  according  to  bill  of 
lading.— A  carrier  is  exonerated  from  liability  for  freight  by  deliver- 
ing thereof,  in  good  faith,  to  any  holder  of  a  bill  of  lading  therefor, 
properly  indorsed,  or  made  in  favor  of  the  bearer. 

§  2132.  Carrier  may  demand  surrender  of  a  bill  of  lading  be- 
fore delivery.— When  a  carrier  has  given  a  bill  of  lading,  or  other 
instrument 'substantially  equivalent  thereto,  he  may  require  its  sur- 
render, or  a  reasonable  indemnity  against  claims  thereon,  before  de- 
livering the  freight.  , 

DAKOTA. 

[Compiled  Laws,  1887.] 
§  3855,  Civil  Code.     Bill  of  lading  defined.— A  bill  of  lading  is 
an  instrument  in  writing,  signed  by  a  carrier  or  his  agent,  describing 
the  freight  so  as  to  identify  it,  stating  the  name  of  the  consignor,  the 

423 


BILLS   OF   LADING. 

terms  of  the  contract  for  carriage,  and  agreeing  or  directing  that  the 
freight  be  delivered  to  the  order  or  assigns  of  a  specified  person  at  a 
specified  place. 

§  3856,  Civil  Code,  Bill  of  lading  is  negotiable. — All  the  title 
to  the  freight  which  the  first  holder  of  a  bill  of  lading  had  when  he 
received  it  passes  to  every  subsequent  indorsee  thereof,  in  good  faith 
and  for  value,  in  the  ordinary  course  of  business,  with  like  eff"ect  and 
in  like  manner  as  in  the  case  of  a  bill  of  exchange. 

§  3857,  Civil  Code.  When  negotiable  by  delivery. — When  a  bill 
of  lading  is  made  to  bearer,  or,  in  equivalent  terms,  a  simple  transfer 
thereof  by  delivery,  conveys  the  same  title  as  an  indorsement. 

§  3858,  Civil  Code.  A  bill  of  lading  does  not  alter  the  rights  or 
obligations  of  the  carrier,  as  defined  in  this  chapter,  unless  it  is 
plainly  inconsistent  therewith, 

§  3859,  Civil  Code.  Sets  of  bills. — A  carrier  must  subscribe  and 
deliver  to  the  consignor,  on  demand,  any  reasonable  number  of  bills 
of  lading  of  the  same  tenor,  expressing  truly  the  original  contract  for 
carriage  ;  and  if  he  refuses  to  do  so  the  consignor  may  take  the 
freight  from  him,  and  recover  from  him  besides  all  damages  thereby 
occasioned. 

§  3860,  Civil  Code.  Delivery  according  to  bill. — A  carrier  is 
exonerated  from  liability  for  freight  by  delivery  thereof,  in  good 
faith,  to  any  holder  of  a  bill  of  lading  therefor,  properly  indorsed, 
or  made  in  favor  of  the  bearer. 

§  3861,  Civil  Code.  Surrender  of  bill  of  lading. — When  a  car- 
rier has  given  a  bill  of  lading,  or  other  instrument  substantially 
equivalent  thereto,  he  may  require  its  surrender,  or  a  reasonable 
indemnity  against  claims  thereon,  before  delivering  the  freight. 

§  6623,  Penal  Code.  Defacing  marks. — Every  person  who  de- 
faces or  obliterates  the  marks  upon  wrecked  property,  or  in  any 
manner  disguises  the  appearance  thereof  with  intent  to  prevent  the 
owner  from  discovering  its  identity,  or  who  destroys  or  suppresses 
any  invoice,  bill  of  lading,  or  other  document  tending  k)  show  the 
ownership,  is  guilty  of  misdemeanor. 

§  6828,  Penal  Code.  False  invoice,  bill  of  lading,  etc. — Every 
person  guilty  of  preparing,  making,  or  subscribing  any  false  or 
fraudulent  manifest,  invoice,  bill  of  lading,  boat's  register,  or  protest, 
with  intent  to  defraud  another,  is  punishable  by  imprisonment  in  the 
territorial  prison  not  exceeding  three  years,  or  by  a  fine  not  exceed- 
ing one  thousand  dollars,  or  both. 

§  6712,  Penal  Code.  False  bill  of  lading.  Every  person  whose 
duty  it  may  be  to  deliver  to  any  collector  of  tolls  upon  any  canal  that 
424 


ADDENDA. 

hereafter  may  be  constructed  and  owned  by  this  territory,  a  bill 
of  lading  of  any  property  transported  upon  any  such  canal,  who 
knowingly  delivers  a,  false  bill  of  lading  as  true,  or  makes  or  signs  a 
false  bill  of  lading  intending  to  be  delivered  as  true,  is  punishable 
by  imprisonment  in  the  territorial  prison  not  exceeding  one  year,  or 
by  a  fine  not  exceeding  five  times  the  value  of  any  property  omitted 
in  such  bill,  or  both. 

§  6866,  Completed  Laws,  1887,  §  Gil,  Penal  Code.  Fraudulent 
bill  of  lading. — Every  person  being  the  piaster,  owner,  or  agent,  or 
transportation  company,  or  otherwise  being  or  representing  any  car- 
rier who  delivers  any  bill  of  lading,  receipt,  or  other  voucher,  or  by 
which  it  appears  that  any  merchandise  of  any  description  has  been 
shipped  on  board  any  vessel,  or  delivered  to  any  railroad,  express,  or 
transportation  company  or  other  carrier,  unless  the  same  has  been  so 
shipped  or  delivered,  and  is  at  the  time  actually  under  the  control  of 
such  carrier,  or  the  master,  owner,  or  agent  of  such  vessel,  or  of  some 
officer  or  agent  of  such  company,  to  be  forwarded  as  express  in  such 
bill  of  lading,  receipt,  or  voucher,  is  punishable  by  imprisonment  in 
the  territorial  prison  not  exceeding  five  years,  or  by  a  fine  not  exceed- 
ing one  thousand  dollars,  or  both.  , 

§  6868,  §  679,  Penal  Code.  When  not  liable. — No  one  can  be  con- 
victed of  any  offence  under  the  last  two  sections,  by  reason  that  the 
contents  of  any  barrel,  box,  case,  cask,  or  other  vessel  or  package 
mentioned  in  the  bill  of  lading,  receipt,  or  other  vouchers  did  not 
correspond  with  the  description  given  in  such  instrument  of  the  mer- 
chandise received,  if  such  description  corresponded  substantially  with 
the  marks,  labels,  or  brands  upon  the  outside  of  such  vessel  or  pack- 
age, unless  it  appears  that  the  accused  knew  that  such  marks,  labels, 
or  brands  were  untrue. 

§  6869,  Dig.  §  680,  Penal  Code.  Duplicate  must  be  so  marked. — 
Every  person  mentioned  in  sections  6866  and  6867  who  issues  any 
second  or  duplicate  receipt  or  voucher,  of  a  kind  specified  in  these 
sections,  at  a  time  while  any  forms,  receipts,  or  vouchers  for  the 
merchandise  specified  in  such  second  receipt  are  outstanding  and  un- 
canceled, without  writing  across  the  face  of  the  same  the  word 
"  duplicate,"  in  a  plain  and  legible  manner,  is  punishable  by  imprison- 
ment in  the  territorial  prison  not  exceeding  five  years,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  both. 

§  6870,  Dig.  §  681,  Penal  Code.  Sale  of  goods  without  consent  of 
holder  of  bill  of  lading. — Every  person  mentioned  in  sections  6866 
and  6867  who  sells,  h3^pothecates,  or  pledges  any  merchandise  for 
which  any  bill  of  lading,  receipt,  or  voucher  has  been  issued  by  him, 

425 


BILLS   OF   LADING. 

without  the  consent  in  writing  thereto  of  the  person  holding  such 
bill  receipt,  or  voucher,  is  punishable  by  imprisonment  in  the  terri- 
torial prison  not  exceeding  five  years,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  both. 

S  0871,  Dig.  §  682,  Penal  Code.  3Iust  be  cancelled  on  deliminj  of 
goods. Every  person,  such  as  mentioned  in  section  6867,  who  de- 
livers to  another  any  merchandise  for  which  any  bill  of  lading, 
receipt,  or  voucher  has  been  issued,  unless  such  receipt  or  voucher  bore 
upon  its  face  the  words  "  not  negotiable"  plainly  written  or  stamped, 
or  unless  such  receipt  Is  surrendered  to  be  cancelled  at  the  time  of 
such  delivery,  or  unless,  in  the  case  of  a  partial  delivery,  a  memo- 
randum thereof  is  indorsed  upon  such  receipt  or  voucher,  is  punish- 
able by  imprisonment  in  the  territorial  prison  not  exceeding  five 
years,  or  by  a  fine  not  exceeding  one  thousand  dollars,  or  both. 

GEORGIA. 

[The  Code  of  the  State  of  Georgia,  1882,  page  348.] 

§  1627.  Owners  of  boats  may  grant  bills  of  lading. — It  shall  be 
the  duty  of  all  owners  or  agents  of  boats  employed  in  the  navigation 
of  the  navigable  waters  of  this  state,  to  grant  to  each  and  every  boat, 
respectively,  previously  to  its  departure  from  the  wharf  or  landing, 
a  certificate  or  bill  of  lading,  showing  its  destination,  contents,  and 
the  name  of  its  captain  or  patroon  and  consignees,  which  certificate 
or  bill  of  lading  shall  at  all  times  be  subject  to  the  examination  of  any 
free  white  jserson  requiring  the  same. 

§  1628.  Failure  to  grant  bill. — Any  such  owner  or  agent  neg- 
lecting or  refusing  to  furnish  a  certificate  or  bill  of  lading,  and  any 
such  captain  or  patroon  refusing  to  exhibit  the  same  on  demand  as 
aforesaid,  may  be  severally  indicted,  and  for  every  offence  be  fined  in 
a  sum  not  exceeding  fifty  dollars — one-half  the  penalty  in  such  case 
to  go  to  the  informer  and  the  other  half  to  the  use  of  the  county 
where  such  conviction  takes  place. 

§  1630.  Owner  not  to  allow  articles  shipped,  unless  in  the  bill. — 
No  owner,  captain,  or  patroon  of  such  boat  shall  permit  any  such 
boat  hand  to  take  with  him  any  such  articles,  unless  the  same  shall 
be  stated  in  such  certificate  or  bill  of  lading,  and  such  articles  shall  be 
immediately  under  the  direction  of  such  owner,  captain,  or  patroon, 
or  the  agent  of  the  owner,  under  penalty  of  fine  and  imprisonment,  at 
the  discretion  of  the  court,  for  every  offence  against  any  of  said 
provisions. 

426 


ADDENDA. 

ILLINOIS. 

[Starr  and  Curtis's  Annotated  Statutes,  1885,  vol.  I.,  ch.  27.] 

An  Act  to  fix  the  Liability  of  Common  Carriers  receiving  property  for  transpor- 
tation.    Approved  March  27,  1874 ;  in  force  July  1,  1874. 

§  L  Be  it  enacted  by  the  People  of  the  State  of  Illinois,  repre- 
sented in  General  Assembly,  That  whenever  any  property  is  received 
by  a  common  carrier,  to  be  transported  from  one  place  to  another, 
within  or  without  this  state,  it  shall  not  be  lawful  for  such  carrier  to 
limit  his  common-law  liability  safely  to  deliver  such  property  at  the 
place  to  which  the  same  is  to  be  transported,  by  any  stipulation  or 
limitation  expressed  in  the  receipt  given  for  such  property. 

INDIANA. 

[Revised  Statutes,  Annotated  Edition,  Vol.  II.] 

§  4025.  Bill  of  lading  evidence  of  name  or  character  of  rail- 
road.— Any  railroad  corporation,  lessee,  assignee,  receiver,  and  other 
person  or  corporation,  running,  controlling,  or  operating  any  railroad 
into  or  through  this  state,  shall  be  liable,  jointly  or  severally,  for 
stock  killed  or  injured  by  the  locomotives,  cars,  or  other  carriages  run 
on  such  road,  in  the  name  in  which  the  road  was  run  or  operated  at 
the  time,  to  the  extent  and  according  to  the  provisions  of  this  act  and 
the  bills  of  lading  usually  issued  at  any  railroad  station  in  the  county 
in  which  such  stock  was  killed  or  injured,  shall  be  prima  facie  evi- 
dence as  to  the  character  or  name  in  which  said  railroad  was  owned, 
held,  controlled,  or  operated. 

IOWA. 

[Revised  Code  of  Iowa,  Miller,  1888.] 

§  4088.  False  voucher  issued  by  warehousemen,  etc. — If  any 
owner  of  any  boat  or  vessel,  or  of  any  property  laden  or  pretended  to 
be  laden  on  board  the  same ;  or  if  any  person  concerned  in  the  lading 
or  fitting  out  such  boat  or  vessel,  make  out  and  either  exhibit,  or 
cause  to  be  made  out  and  exhibited,  any  false  estimate  of  any  goods 
or  property  laden  or  pretended  to  be  laden  on  board  such  boat  or 
vessel,  with  intent  to  injure  or  defraud  any  insurer  of  such  boat  or 
vessel  or  property,  or  any  part  thereof,  he  shall  be  fined  not  exceeding 
one  thousand  dollars,  or  imprisonment  in  the  penitentiary  not  more 
than  three  years. 

427 


BILLS    OF   LADING. 

§  2184.  Cannot  limit  liability .—N o  contract,  receipt,  rule,  or  reg- 
ulation shall  exempt  any  corporation  or  person  engaged  in  transport- 
ing persons  for  hire  from  the  liability  of  a  common  carrier,  or  carrier 
of  passengers,  which  would  exist  had  no  contract,  receipt,  rule,  or 
regulation  been  made  and  entered  into. 

MARYLAND. 

[Public  General  Laws  of  Maryland,  Vol.  I.,  1888,  page  117,  Article  XIV.] 
ARTICLE  XIV. 

BILLS  OF  LADING,  STORAGE  AND  ELEVATOR  RECEIPTS. 


Section 

1.  Bills  of  lading  to  be  negotiable 

instruments. 

2.  Conclusive  evidence  of  tlieir  con- 

tents. 

3.  Storage  receipts  also  to  be  nego- 

tiable. 


Sectioj? 

4.  When    held    to    be    completely 

issued. 

5.  Not  to  be  issued  until  goods  are 

actually  delivered. 

6.  Duplicates  ;    delivery  of  goods  ; 

penalties. 

7.  Civil  remedies  upon. 


Section  1.  All  bills  of  lading  and  all  receipts,  vouchers  or  acknowl- 
edgments whatsoever  in  writing,  in  the  nature  or  stead  of  bills  of 
lading  for  goods,  chattels  or  commodities  of  any  kind,  to  be  transported 
on  land  or  water,  or  on  both,  which  shall  be  executed  in  this  State, 
or  being  executed  elsewhere,  shall  provide  for  the  delivery  of  goods, 
chattels  or  commodities  of  any  kind  within  this  State,  and  all  ware- 
house, elevator  or  storage  receipts  whatsoever  for  goods,  chattels  or 
commodities  of  any  kind  stored  or  deposited,  or  in  said  receipts  stated 
or  acknowledged  to  be  stored  or  deposited  for  any  purpose  in  any 
warehouse,  elevator  or  other  place  of  storage  or  deposit  in  this  State, 
shall  be  and  they  are  hereby  constituted  and  declared  to  be  negotiable 
instruments  and  securities,  unless  it  be  provided  in  express  terras  to 
the  contrary  on  the  face  thereof,  in  the  same  sense  as  bills  of  exchange 
and  promissory  notes,  and  full  and  complete  title  to  the  property  in 
said  instruments  mentioned  or  described,  and  all  rights  and  remedies 
incident  to  such  title,  or  arising  under  or  derivable  from  the  said 
instrument,  shall  enure  to  and  be  vested  in  each  and  every  bona  fide 
holder  thereof  for  value,  altogether  unaffected  by  any  rights  or  equi- 
ties whatsoever,  of  or  between  the  original  or  any  other  prior  holders 
of  or  parties  to  the  same,  of  which  such  bona  fide  holder  for  value 
shall  not  have  had  actual  notice  at  the  time  he  became  such. 

Sec.  2.    Every  instrument  of  those  mentioned  and  described  in 
section  1,  which  shall  be  issued  by  any  person  or  corporation,  or  by 
428 


ADDENDA. 

any  agent  or  ofiBcer  of  any  person  or  corporation  authorized  to  issue 
the  same  on  his  or  its  behalf,  or  authorized  or  permitted  by  such 
person  or  corporation  to  issue  like  instruments  on  his  or  its  behalf 
for  goods,  chattels  or  commodities,  actually  received  for  transporta- 
tion or  held  on  storage,  as  the  case  may  be,  shall  be  conclusive 
evidence  in  the  hands  of  any  bona  fide  holder  for  value  of  such 
instrument,  who  shall  have  become  such  without  actual  notice  to  the 
contrary,  that  all  of  the  goods,  chattels  and  commodities  in  said 
instrument  mentioned  or  described,  had  been  actually  received  by 
and  were  actually  in  the  possession  and  custody  of  such  person  or 
corporation  at  the  time  of  issuing  the  said  instrument  according  to 
the  tenor  thereof,  and  for  the  purposes  and  to  the  effects  therein 
stipulated  or  provided,  notwithstanding  that  the  fact  may  be  other- 
wise, and  that  such  agent  or  officer  may  have  had  no  authority  to 
issue  any  such  instrument  on  behalf  of  his  said  principal,  except  for 
goods,  chattels  or  commodities  actually  received  and  in  possession  at 
the  time  of  such  issue. 

Sec.  3.  Every  acceptance  of  an  order  and  every  other  voucher 
whatsoever,  for  any  goods,  chattels  or  commodities  as  on  storage  or 
deposit,  whereby  the  custody  or  possession  of  such  goods,  chattels  or 
commodities  shall  be  acknowledged  or  certified  by  any  warehouse- 
man, wharfinger  or  other  person  or  corporation  within  this  State, 
and  which  acceptance  or  voucher  shall  not  on  its  face  provide  or 
stipulate  in  terms  that  it  shall  not  be  negotiable,  shall  be  held  and 
taken  when  issued  to  be  a  negotiable  receipt  and  instrument  to  all 
intents  and  effects  within  the  meaning  and  operation  of  this  article. 

Sec.  4.  Any  instrument  declared  negotiable  by  this  ai'ticle  shall  be 
held  and  taken  to  have  been  issued  within  the  meaning  of  this  article 
when  it  shall  have  been  signed  and  shall  have  been  delivered  out  of 
the  custody  of  the  person  or  corporation  to  be  charged  or  bound  by 
the  same,  or  of  his  or  its  agent  or  ofiBcer  aforesaid. 

Sec.  5.  No  person  or  corporation,  or  agent  or  officer  of  any  person 
or  corporation  in  this  State,  shall  issue  any  bill  of  lading,  receipt, 
acknowledgment  or  voucher  whatsoever,  for  goods,  chattels  or  com- 
modities of  any  kind  to  be  transported  on  land  or  water,  or  on  both, 
or  any  receipt,  acceptance  of  an  order  or  other  voucher  for  goods, 
chattels  or  commodities,  as  on  storage  or  deposit  in  this  State,  until 
and  unless  the  whole  of  the  said  goods,  chattels  and  commodities 
shall  have  been  actually  received  to  be  transported  by  such  person 
or  corporation  in  the  one  case,  or  shall  be  actually  in  the  possession 
or  custody,  or  upon  the  premises,  or  under  the  absolute  and  exclusive 
control  of  such  person  or  corporation  in  the  other  case  at  the  time 

429 


BILLS    OF   LADING. 

when  such  instrument  shall  be  issued ;  and  any  principal  person  or 
corporation,  or  any  agent  or  officer  whatsoever,  of  any  person  or 
corporation,  wilfully  violating  this  section,  or  any  of  the  provisions 
thereof,  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof, 
shall  be  subject  to  a  fine  of  not  less  than  one  thousand  nor  more  than 
five  thousand  dollars,  in  the  discretion  of  the  court. 

Sec.  6.  No  warehouseman  or  corporation  or  person  whatsoever 
having  issued  or  caused  to  be  issued  or  having  outstanding,  and  issued 
bv  any  agent  or  officer  of  such  person  or  corporation  as  aforesaid,  any 
receipt,  acceptance  of  order  or  other  voucher  for  goods,  chattels  or 
commodities  as  on  deposit  or  storage  with  or  in  the  custody  or  on  the 
premises,  or  under  the  control  of  such  person  or  corporation,  shall 
issue  any  other  receipt,  acceptance  of  order  or  other  voucher  whatso- 
ever for  the  same,  or  any  part  thereof,  until  the  said  first  issued 
instrument  shall  have  been  returned  and  cancelled  or  destroyed ;  and 
no  person  or  corporation  whatsoever  having  issued  or  having  out- 
standing as  aforesaid  any  such  receipt,  acceptance  of  order  or  other 
voucher  aforesaid,  and  no  agent  or  officer  of  any  such  person  or  cor- 
poration shall  part  with,  deliver  or  remove  or  permit  to  be  delivered 
or  removed  the  goods,  chattels  or  commodities  in  such  instrument 
named  or  described,  or  any  part  thereof,  except  only  to  or  by  the 
holder  of  said  instrument,  or  upon  his  order,  and  upon  the  presenta- 
tion of  said  instrument  with  his  endorsement  in  every  case,  or  with- 
out cancelling  or  destroying  said  instrument  in  case  of  complete 
delivery  or  removal  or  endorsing  thereon  the  quantity  and  descrip- 
tion of  the  goods,  chattels  or  commodities  delivered  or  removed,  and 
the  names  of  the  persons  to  whom  delivered,  or  by  whom  removed 
in  case  such  delivery  or  removal  shall  be  partial  only ;  and  any  prin- 
cipal person  or  corporation  or  agent  or  officer  of  any  person  or  cor- 
poration wilfully  violating  this  section,  or  any  of  the  provisions 
thereof,  shall  be  guilty  of  a  misdemeanor,  punishable  by  a  fine  of  not 
less  than  one  thousand  nor  more  than  five  thousand  dollars  in  the 
case  of  a  corporation,  and  in  the  case  of  an  individual  by  a  fine  of  not 
less  than  one  hundred  nor  more  than  five  thousand  dollars,  and  im- 
prisonment in  the  penitentiary  for  a  period  of  not  less  than  one  year, 
nor  more  than  three  years,  in  the  discretion  of  the  court ;  provided, 
however,  that  nothing  herein  contained  shall  be  construed  to  prohibit 
the  bo7ia  fide  issuing  of  duplicate  receipts,  acceptances  or  other 
vouchers  aforesaid,  with  the  word  "duplicate"  conspicuously  written 
or  printed  upon  the  face  thereof,  in  the  stead  of  any  original  out- 
standing receipts,  acceptances  or  other  vouchers  aforesaid,  which 
may  have  been  lost,  destroyed  or  mislaid. 
430 


ADDENDA. 


Sec.  1.  No  person  having  any  claim,  right  or  action  whatever 
under  this  article  or  otherwise  upon  or  under  any  instrument  de- 
clared negotiable  thereby,  or  by  reason  of  the  issuing,  negotiation 
or  holding  of  said  instrument,  or  the  doing  of  any  matter  or  thing 
by  this  article  forbidden  or  made  punishable,  shall  be  in  any  way 
hindered  or  precluded  from  asserting  or  maintaining  the  same  by  or 
because  of  any  prohibitory  or  punitive  provision  in  this  article 
contained. 

ARTICLE  XXVII.     Vol.  I.,  page  488. 

FRAUD-BILLS  OF  LADING. 

Sec.  81.  No  person  or  corporation,  or  agent  or  officer  of  any  per- 
son or  corporation  in  this  State,  shall  issue  any  bill  of  lading,  receipt, 
acknowledgment  or  voucher  whatsoever,  for  goods,  chattels  or  com- 
modities of  any  kind,  to  be  transported  on  land  or  water,  or  on  both, 
or  any  receipt,  acceptance  of  an  order  or  other  voucher  for  goods, 
chattels  or  commodities,  as  on  storage  or  deposit  in  this  State,  until 
and  unless  the  whole  of  the  said  goods,  chattels  and  commodities 
shall  have  been  actually  received  to  be  transported  by  such  person  or 
corporation,  in  the  one  case,  or  shall  be"  actually  in  the  possession  or 
custody,  or  upon  the  premises,  or  under  the  absolute  and  exclusive 
control  of  such  person  or  corporation,  in  the  other  case,  at  the  time 
when  such  instrument  shall  be  issued ;  and  any  principal  person  or 
corporation,  or  any  agent  or  officer  whatsoever,  of  any  person  or  cor- 
poration,  wilfully  violating  the  provisions  or  any  provision  of  this 
section,  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof 
shall  be  subject  to  a  fine  of  not  less  than  one  thousand  nor  more 
than  five  thousand  dollars,  in  the  discretion  of  the  court. 

MASSACHUSETTS. 

[Digest  of  Public  Statutes,  1882,  pjCge  1148,  §  75.] 
§  15.  (Which  is  G.  S.  161,  §  65.)  Consignee,  etc.,  fraudulently 
depositing  or  pledging  propertij,  etc.— A  consignee  or  factor  who  de- 
posits or  pledges  merchandise,  or  a  bill  of  lading,  certificate,  or  order 
for  the  delivery  of  merchandise  consigned  or  intrusted  to  him  as  se- 
curity for  money  borrowed,  or  a  negotiable  instrument  received  by 
him,  or  disposes  of  or  applies  the  same  to  his  own  use  in  violation  of 
good  faith  and  with  intent  to  defraud  the  owner  thereof,  or  with  the 
like  fraudulent  intent  disposes  of  or  applies  to  his  own  use  any  money 
or  negotiable  instrument  raised  or  acquired  by  the  sale  or  other  dis- 
position of  such  merchandise,  bill  of  lading,  certificate,  or  order,  shall 

431 


BILLS   OF  LADING. 

be  punished  by  fine  not  exceeding  five  thousand  dollars,  and  impris- 
onment not  exceeding  five  years. 

§  91.  (Which  is  G.  S.  ICl,  §  18.)  Making  false  invoice,  etc.,  of 
cargo  to  defraud  insurer,  etc. — An  owner  of  a  ship  or  vessel,  or  of 
property  laden  or  pretended  to  be  laden  on  ])oard  the  same,  or  any 
other  person  concerned  in  the  lading  or  fitting  out  of  a  ship  or 
vessel,  who  makes  out  or  exhibits  or  causes  to  be  made  out  or  exhib- 
ited a  false  or  fraudulent  invoice,  bill  of  lading,  bill  of  parcels,  or 
other  false  estimates  of  any  goods  or  property  laden  or  pretended  to 
be  laden  on  board  such  ship  or  vessel,  with  intent  to  injure  or  defraud 
an  insurer  of  such  ship,  vessel,  or  property,  or  any  part  thereof,  shall 
be  punished  by  imprisonment  in  the  State  Prison  not  exceeding  ten 
years,  or  by  fine  not  exceeding  five  thousand  dollars,  and  imprison- 
ment in  the  jail  not  exceeding  two  years. 

MICHIGAN. 

[Howell's  Anuotated  Statutes,  1882,  page  867.] 

§  3383.  Penalty  for  executing  false  bill  of  lading  by  employe, 
etc. — If  any  officer,  agent,  clerk,  servant,  or  employe,  of  any  railway 
company  of  this  State,  or  which  may  be  doing  business  in  this  State, 
shall  execute  and  deliver  to  any  person  or  corporation,  or  execute  to 
be  delivered,  a  bill  of  lading,  receipt,  or  certificate,  which  shall  pur- 
port to  be  property  at  the  time  of  executing  such  bill  of  lading, 
receipt,  or  certificate  in  possession  of  such  railway  company  or  its 
agent,  when  the  property  is  not  in  the  possession  or  control  of  said 
railway  company,  he  shall  be  deemed  guilty  of  a  felony,  and  on  con- 
viction thereof  shall  be  punished  by  fine  not  exceeding  two  thousand 
dollars,  or  imprisonment  in  the  State  Prison  not  exceeding  three 
years,  or  both,  in  the  discretion  of  the  court. 

§  3384.  Fraudulent  use  of  bill  of  lading  as  security,  etc. — If 
any  person  having  possession  or  control  of  a  bill  of  lading,  receipt,  or 
certificate  of  any  such  railway  company,  knowing  the  same  to  have 
been  executed  when  the  property  described  therein  was  not  in  pos- 
session of  the  railway  company  or  agent  issuing  the  same,  who  shall 
sell,,  pledge,  or  otherwise  dispose  of  such  bill  of  lading,  receipt,  or 
certificate,  for  a  valuable  consideration  or  as  security  for  a  past  debt, 
shall  be  deemed  guilty  of  a  felony,  and  on  conviction  thereof,  shall 
be  punished  by  a  fine  not  exceeding  three  thousand  dollars,  or  im- 
prisonment in  the  State  Prison  not  exceeding  three  years,  or  both,  in 
the  discretion  of  the  court. 
432 


ADDENDA. 

MINNESOTA. 

[Statutes,  187&,  page  1013.] 

§  17.  Warehouse  receipts,  etc.,  negotiable,  and  indorsee  to  be 
owner  of  properttj,  exceptions. — Warehouse  receipts,  given  for  any 
goods,  wares  and  merchandise,  grain,  flour,  produce  or  other  com- 
modity, stored  or  deposited  with  any  warehouseman,  or  other  person 
or  corporation  in  this  State,  or  bills  of  lading,  or  receipt  for  the  same, 
when  in  transit  by  cars  or  vessels  to  any  such  warehouseman,  or 
other  person,  shall  be  negotiable,  and  may  be  transferred  by  indorse- 
ment and  delivery  of  such  receipt  or  bill  of  lading ;  and  any  person 
to  whom  the  said  receipt  or  bill  of  lading  may  be  transferred,  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares,  or  mer- 
chandise therein  specified,  so  as  to  give  security  and  validity  to  any 
lien  created  on  the  same,  subject  to  the  payment  of  freight  and 
charges  thereon :  provided,  that  all  warehouse  receipts,  or  bills  of 
lading,  which  shall  have  the  words  "not  negotiable"  plainly  written 
or  stamped  on  the  face  thereof,  shall  be  exempt  from  the  provisions 
of  this  act.     (Id.  §  5.) 

[Supplement,  1888,  page  1037.] 

§  471.  Issuing  fictitious  bills  of  lading,  etc. — A  person  being  the 
master,  owner,  or  agent  of  any  vessel,  or  officer  or  agent  of  any  rail- 
way, express,  or  transportation  company,  or  otherwise  being  or  rep- 
resenting any  carrier  who  delivers  any  bill  of.  lading,  receipt,  or  other 
voucher,  by  which  it  appears  that  merchandise  of  any  kind  has  been 
shipped  on  board  a  vessel,  or  delivered  to  a  railway,  express  or  trans- 
portation company,  or  other  carrier,  unless  the  same  has  been  so 
shipped  or  delivered,  and  is  at  the  time  actually  under  the  control  of 
such  carrier,  or  the  master,  owner,  or  agent  of  such  vessel,  or  of  some 
officer  or  agent  of  such  company,  to  be  forwarded  as  expressed  in  such 
bill  of  lading,  receipt,  or  voucher,  is  punishable  by  imprisonment  in  a 
county  jail  not  exceeding  one  year,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  by  both. 

§  472.  Issuing  fictitious  warehouse  receipts,  etc. — A  person 
carrying  on  the  business  of  a  warehouseman,  wharfinger,  or  other 
depositary  of  property,  who  issues  any  receipt,  bill  of  lading,  or  other 
voucher  for  grain  or  merchandise  of  any  kind  which  has  not  been 
actually  received  upon  the  premises  of  such  person,  and  is  not  under 
his  actual  control  at  the  time  of  issuing  such  instrument,  whether 
such  instrument  is  issued  to  a  person  as  being  the  owner  of  such  grain 
or  merchandise,  or  as  security  for  any  indebtedness,  is  punishable  by 
28  .  433 


BILLS   OF   LADING. 

imprisonment  in  a  county  jail  not  exceeding  one  year,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  by  both. 

§  473.  lb.  Issued  in  good  faith,  excepted. — No  person  can  be 
convicted  of  any  offence  under  the  last  two  sections,  for  the  reason 
that  the  contents  of  any  barrel,  box,  case,  or  cask,  or  other  vessel  or 
package  mentioned  in  the  bill  of  lading,  receipt,  or  other  voucher  did 
not  correspond  with  the  description  given  in  such  instrument  of  the 
merchandise  received,  if  such  description  corresponds  substantially 
with  the  marks,  labels,  or  brands  upon  the  outside  of  such  vessel  or 
package,  unless  it  appears  that  the  defendant  knew  that  such  marks, 
labels,  or  brands  were  untrue. 

§  474.  Duplicate  receijyt  must  be  marked. — A  person  mentioned 
in  sections  four  hundred  and  seventy-one  and  four  hundred  and 
seventy-two,  who  issues  any  second  or  duplicate  receipt  or  voucher 
of  any  kind  specified  in  those  sections,  at  a  time  while  a  former  re- 
ceipt or  voucher  for  the  grain  or  merchandise  specified  in  such  second 
receipt  is  outstanding  and  uncanceled,  without  writing  across  the  face 
of  the  same  the  word  "  duplicate"  in  a  plain  and  legible  manner,  is 
punishable  by  imprisonment  in  a  county  jail  not  exceeding  one  year, 
or  by  a  fine  not  exceeding  one  thousand  dollars,  or  by  both. 

§  475.  Selling,  etc.,  property  received  for  transportation  or  sto- 
rage.— A  person  mentioned  in  sections  four  hundred  and  seventy-one 
and  four  hundred  and  seventy-two,  who  sells  or  pledges  any  merchan- 
dise for  which  a  bill  of  lading,  receipt,  or  other  voucher  has  been 
issued  by  him,  without  the  consent  in  writing  thereto  of  the  person 
holding  such  bill,  receipt,  or  voucher,  is  punishable  by  imprisonment 
in  a  county  jail  not  exceeding  one  year,  or  by  a  fine  not  exceeding 
one  thousand  dollars,  or  both. 

[Statutes,  1891,  Vol.  I.] 

§  509.  Common  law  liability. — (d)  Whenever  any  property  is 
received  by  any  common  carrier  subject  to  the  provisions  of  this  act, 
to  be  transported  from  one  place  to  another  within  this  State,  it  shall 
be  unlawful  for  such  common  carrier  to  limit  in  any  way,  except  as 
stated  in  its  classification  schedule,  hereinafter  provided  for,  its  com- 
mon law  liability  with  reference  to  such  property  while  in  its  custody 
as  a  common  carrier  (as  hereinbefore  mentioned),  such  liability  must 
include  the  absolute  responsibility  of  the  common  carrier  for  the  acts 
of  its  agents  in  relation  to  such  property. 

1887,  ch.  10,  sec.  3.     Supersedes  and  contains  sections  19,  26,  and 
last  half  of  sec.  15,  ch.  188,  laws  1885;  sec.  9,  ch.  103,  laws  1875; 
sections  11  and  12,  ch.  26,  laws  1874.     34  M.  88. 
434 


ADDENDA. 

[Statutes,  1891,  Vol.  2.     Fraudulent  Issue  of  Documents  of  Title  to 
Merchandise], 

§  6451.  Issuing  fictitious  bills  of  lading,  etc. — A  pei'son  being 
the  master,  owner,  or  agent  of  any  vessel,  or  officer  or  agent  of  any 
railway,  express  or  transportation  company,  or  otherwise  being  or 
representing  any  carrier,  who  delivers  any  bill  of  lading,  receipt  or 
other  voucher,  by  which  it  appears  that  merchandise  of  any  kind 
has  been  shipped  on  board  a  vessel,  or  delivered  to  a  railway,  express 
or  transportation  company,  or  other  carrier,  unless  the  same  has  been 
so  shipped  or  delivered,  and  is  at  the  time  actually  under  the  control 
of  such  carrier  or  the  master,  owner  or  agent  of  such  vessel,  or  of 
some  officer  or  agent  of  such  company,  to  be  forwarded  as  expressed 
in  such  bill  of  lading,  receipt  or  voucher,  is  punishable  by  imprison- 
ment in  a  county  jail  not  exceeding  one  year,  or  by  a  fine  not  exceed- 
ing one  thousand  dollars,  or  both. 

P.  C.  Sec.  471.     Same  as  Sec.  628,  N.  Y.  Penal  Code. 

§  6452.  Issuing  fictitious  warehouse  receipts. — A  person  carrying 
on  the  business  of  a  warehouseman,  wharfinger  or  other  depositary 
of  property,  who  issues  any  receipt,  bill  of  lading,  or  other  voucher 
for  grain  or  merchandise  of  any  kind  which  has  not  been  actually 
received  upon  the  premises  of  such  person,  and  is  not  under  his  actual 
control  at  the  time  of  issuing  such  instrument,  whether  such  instru- 
ment is  issued  to  a  person  as  being  the  owner  of  such  grain  or  mer- 
chandise, or  as  security  for  any  indebtedness,  is  punishable  by  im- 
prisonment in  a  county  jail  not  exceeding  one  year,  or  by  a  fine  not 
exceeding  one  thousand  dollars,  or  by  both. 

P.  C.  Sec.  472.  Same  as  Sec.  629,  N.  Y.  Penal  Code.  Substan^ 
tially  contains  Sec.  31  (42),  ch.  95,  G.  S. 

435 


BILLS    OF   LADING. 

MISSOURI.  • 

[Revised  Statutes,  1889,  Vol.  I.] 
CHAPTER  18. 

bills  of  lading wakehoutse  eeceipts. 

Section 


until     goods     actually     on 
boat,  etc. 

744.  Receipts,  bills  of  lading,  etc., 

declared  negotiable. 

745.  How  transferred — lien  created 

— exception. 

746.  Penalty   for   violation   of  the 

provisions  of  tbis  act. 

747.  This  act  applicable  to  bills  of 

lading,  etc. 

748.  Exception  as  to  application. 


Section 

739.  Warehouseman,    etc.,    not   to 

issue    receipt    until    goods 
actually  in  store. 

740.  Not   to  issue  any  receipt   for 

money    loaned,  etc.,    until 
goods  actually  in  store. 

741.  Not    to   issue   second    receipt 

when. 

742.  Not  to  sell,  etc.,  goods  with- 

out written  assent  of  person 
holding  receipt. 

743.  Not  to  give  shipping   receipt 

Sec.  139.  Warehouseman,  etc.,  not  to  issue  receipt  until  goods  ac- 
tually in  store. — No  warehouseman,  wharfinger,  or  other  person, 
shall  issue  any  receipt  or  other  voucher  for  any  goods,  wares,  mer- 
chandise, grain,  flour,  or  other  produce  or  commodity,  to  any  person 
or  persons  purporting  to  be  the  holder,  owner  or  owners  thereof, 
unless  such  goods,  wares,  merchandise,  grain,  or  other  produce  or 
commodity  shall  have  been  actually  received  in  store  upon  the 
premises  of  such  warehouseman,  wharfinger,  or  other  person,  and 
shall  be  in  the  store  or  on  the  premises  aforesaid  and  under  his  con- 
trol at  the  time  of  issuing  such  receipt.     (R.  S.  1879,  §  553,  a.) 

Sec.  740.  Not  to  issue  any  receipt  for  money  loaned,  etc.,  until 
goods  actually  in  store. — No  warehouseman,  wharfinger,  or  other 
person  shall  issue  any  receipt  or  other  voucher  upon  any  goods, 
wares,  merchandise,  grain,  flour,  or  other  produce  or  commodity,  to 
any  person  or  persons  for  any  money  loaned,  or  other  indebtedness, 
unless  such  goods,  wares,  merchandise,  grain,  flour,  or  other  produce 
or  commodity  shall  be  at  the  time  of  issuing  such  receipt  in  the  cus- 
tody of  such  warehouseman,  wharfinger,  or  other  person,  and  shall 
be  in  store  or  upon  the  premises  and  under  his  control  at  the  time  of 
issuing  such  receipt  or  other  voucher  as  aforesaid.  (R.  S.  1879, 
§  554.) 

Sec.  141.  Not  to  issue  second  receipt,  when. — No  warehouseman, 

wharfinger,  or  other  person  shall  issue  any  second  or  duplicate  receipt 

for  any  goods,  wares,  merchandise,  grain,  flour,  or  other  produce  or 

commodity,  while  any  former  receipt  for  any  such  goods,  wares, 

436 


ADDENDA. 

merchandise,  grain,  flour,  or  other  produce  or  commodity,  as  aforesaid, 
or  any  part  thereof,  shall  be  outstanding  and  uncanceled,  without  writ- 
ing across  the  face  of  the  same  duplicate.     (R.  S.  1879,  §  555.) 

Sec.  742.  Not  to  sell,  etc.,  goods  without  written  assent  of  person 
holding  receijjt. — No  warehouseman,  wharfinger,  or  other  person, 
shall  sell  or  incumber,  ship,  transfer,  or  in  any  manner  remove,  or 
permit  to  be  shipped,  transferred,  or  removed  beyond  his  control,  any 
goods,  wares,  merchandise,  grain,  flour,  or  other  produce  or  commod- 
ity, for  which  a  receipt  shall  have  been  given  by  him  as  aforesaid, 
whether  received  for  storing,  shipping,  grinding,  manufacturing,  or 
other  purpose,  without  the  written  assent  of  the  person  or  persons 
holding  such  receipt.     (R.  S.  1879,  §  556.) 

Sec.  743.  Not  to  give  shipping  receipt  until  goods  are  actually  on 
boat,  etc. — No  master,  owner  or  agent  of  any  boat  or  vessel  of  any 
description,  forwarder  or  officer  or  agent  of  any  railroad,  transfer  or 
transportation  company,  or  other  person,  shall  sign  or  give  any  bill 
of  lading,  receipt  or  other  voucher  or  document  for  any  merchandise 
or  property,  by  which  it  shall  appear  that  such  merchandise  or  prop- 
erty has  been  shipped  on  board  of  any  boat,  vessel,  railroad-car  or 
other  vehicle,  unless  the  same  shall  have  been  actually  shipped  and 
put  on  board,  and  shall  be  at  the  time  actually  on  board,  or  delivered 
to  such  boat,  vessel,  car  or  other  vehicle,  to  be  carried  and  conveyed 
as  expressed  in  such  bill  of  lading,  receipt  or  other  voucher  or  docu- 
ment.    (R.  S.  1879,  §  557,  b.) 

Sec.  744.  Iieceip{s,  bills  of  lading,  etc.,  declared  negotiable. — All 
receipts  issued  or  given  by  any  warehouseman,  or  other  person  or 
firm,  and  all  bills  of  lading,  transportation-receipts  and  contracts  of 
affreightment,  issued  or  given  by  any  person,  boat,  railroad  or  transpor- 
tation or  transfer  company,  for  goods,  wares,  merchandise,  grain,  flour, 
or  other  produce,  shall  be  and  are  hereby  made  negotiable  by  written 
indorsement  thereon,  and  delivery  in  the  same  manner  as  bills  of  ex- 
change and  promissory  notes ;  and  no  printed  or  written  conditions, 
clauses  or  provisions  inserted  in  or  attached  to  any  such  receipts,  bills 
of  lading  or  contracts,  shall  in  any  way  limit  the  negotiability  or 
affect  any  negotiation  thereof,  nor  in  any  manner  impair  the  right 
and  duties  of  the  parties  thereto,  or  persons  interested  therein ;  and 
every  such  condition,  clause  or  provision  purporting  to  limit  or  affect 
the  rights,  duties  or  liabilities  created  or  declared  in  this  chapter, 
shall  be  void  and  of  no  force  or  effect.     (R.  S.  1879,  §  558,  c.) 

Sec.  745.  How  transferred,  lien  created,  exception. — Warehouse 
receipts  given  by  any  warehouseman,  wharfinger  or  other  person  or 
firm,  for  any  goods,  wares,  merchandise,  grain,  flour  or  other  produce 

437 


BILLS   OF   LADING. 

or  commodity,  stored  or  deposited,  and  all  bills  of  lading  and  trans- 
portation-receipts of  every  kind,  given  by  any  carrier,  boat,  vessel, 
railroad,  transportation  or  transfer  company,  may  be  transferred  by 
indorsement  in  writing  thereon,  and  the  delivery  thereof  so  indorsed : 
and  any  and  all  persons  to  whom  the  same  may  be  so  transferred  shall 
be  deemed  and  held  to  be  the  owner  of  such  goods,  wares,  merchan- 
dise, grain,  flour  or  other  produce  or  commodity,  so  far  as  to  give 
validity  to  any  pledge,  lien  or  transfer  given,  made  or  created  thereby, 
as  on  the  faith  thereof,  and  no  property  so  stored  or  deposited,  as 
specified  in  such  bills  of  lading  or  receipts,  shall  be  delivered,  except 
on  surrender  and  cancellation  of  such  receipts  and  bills  of  lading: 
Provided,  however,  that  all  such  receipts  and  bills  of  lading,  which 
shall  have  the  words  "  not  negotiable"  plainly  written  or  stamped  on 
the  face  thereof,  shall  be  exempt  from  the  provisions  of  this  act. 
(R.  S.  1879,  §  559,  d.) 

Sec.  746.  Penalty  for  violation  of  the  provisions  of  this  chapter. — 
Any  warehouseman,  wharfinger,  forwarder  or  other  person  who  shall 
violate  any  of  the  provisions  of  this  chapter  shall  be  deemed  guilty 
of  a  criminal  offence,  and,  upon  indictment  and  conviction,  shall  be 
fined  in  any  sum  not  exceeding  five  thousand  dollars,  or  imprison- 
ment in  the  penitentiary  of  this  State  not  exceeding  five  years,  or 
both  ;  and  all  and  every  person  or  persons  aggrieved  by  the  violation 
of  any  of  the  provisions  of  this  chapter  may  have  and  maintain  an 
action  at  law  against  the  person  or  persons,  corporation  or  corpora- 
tions, violating  any  of  the  provisions  of  this  chapter,  to  recover  all 
damages,  immediate  or  consequential,  which  he  or  they  may  have 
sustained  by  reason  of  any  such  violation,  as  aforesaid,  before  any 
court  of  competent  jurisdiction,  whether  such  person  or  persons  shall 
have  been  convicted  of  fraud,  as  aforesaid,  under  this  chapter,  or  not. 
(R.  S.  1879,  §560.) 

Sec.  747.  This  chapter  applicable  to  bills  of  lading. — All  the 
provisions  of  this  chapter  shall  apply  and  be  applicable  to  bills  of 
lading,  and  to  all  persons  or  corporations,  their  agents  or  servants, 
that  shall  or  may  issue  bills  of  lading  of  any  kind  or  description,  the 
same  as  if  the  words  forwarder  and  bills  of  lading  were  mentioned 
in  every  section  of  said  chapter.    (R.  S.  1879,  §  561.) 

Sec.  748.  Exception  as  to  application. — So  much  of  the  preceding 
sections  of  this  chapter  as  forbids  the  delivery  of  property,  except  on 
surrender  and  cancellation  of  the  original  receipt  or  bill  of  lading,  or 
the  indorsement  of  such  delivery  thereon  in  case  of  partial  delivery, 
shall  not  apply  to  property  replevied  or  removed  by  operation  of  law. 
(R.  S.  1879,  §  562.) 
438 


ADDENDA. 


NEBRASKA. 

[Compiled  Statutes,  1889,  page  1023.] 
§  130.  False  bills  of  lading  and  receipts.— If  any  person  shall 
execute  or  deliver,  or  shall  cause  or  procure  to  be  executed  and  de- 
livered, to  any  person  any  false  or  fictitious  bill  of  lading,  receipt, 
schedule,  invoice,  or  other  written  instrument,  to  the  purport  and 
efiTect  that  any  goods,  wares,  merchandise,  live  stock,  or  other  prop- 
erty usually  transported  by  carriers,  had  been  or  were  held,  delivered, 
received,  placed,  or  deposited  on  board  of  any  steamboat,  or  water- 
craft,  navigating  the  waters  in  or  bordering  upon  the  state  of  Ne- 
braska, or  at  the  freight  office,  depot,  station,  or  other  place  desig- 
nated or  used  by  any  railroad  company  or  other  common  carrier,  for 
the  reception  of  any  such  property  so  usually  transported  by  carriers, 
when  such  goods,  wares,  merchandise,  live  stock,  or  other  property 
were  not  held,  or  had  not  in  fact  and  in  good  faith  been  delivered, 
received,  or  deposited  on  board  of  such  steamboat,  or  other  water- 
craft,  or  at  such  freight  ofQce,  depot,  station,  or  other  place  so  desig- 
nated or  used  by  any  common  carrier  for  the  reception  of  such  prop- 
erty, when  such  bill  of  lading,  receipt,  invoice,  schedule,  or  other 
written  instrument  was  made  and  delivered,  according  to  the  purport 
and  effect  of  such  bill  of  lading,  receipt,  invoice,  schedule,  or  other 
written  instrument,  with  intent  to  deceive,  defraud,  or  injure  any 
person  or  corporation,  or  if  any  person  shall  attempt  to  indorse, 
assign,  transfer,  or  put  off  any  such  false  or  fictitious  bill  of  lading, 
receipt,  invoice,  schedule,  or  other  written  instrument,  knowing  the 
same  to  be  false,  fraudulent,  or  fictitious,  the  person  so  offending 
shall  be  imprisoned  in  the  penitentiary  not  exceeding  four  years  nor 
less  than  one  year. 

§  131.  False  bills  of  lading  and  receipts. — If  any  person  shall 
execute  and  deliver,  or  shall  cause  or  procure  to  b.e  executed  and  de- 
livered to  any  other  person,  any  false  and  fictitious  warehouse  receipt, 
acknowledgment,  or  other  instrument  of  writing,  to  the  purport  and 
effect  that  such  person,  or  any  other  person  or  persons,  co-partner- 
ship, firm,  body  politic  or  corporate,  which  he  or  she  represents,  or 
pretends  to  represent,  held  or  had  received  in  store,  or  held  or  had 
received  in  any  warehouse,  or  in  any  other  place,  or  held  or  had 
received  into  possession,  custody,  or  control,  of  such  person  or  per- 
sons, co-partnership,  firm,  or  body  politic,  any  goods,  wares,  or  mer- 
chandise, when  such  goods,  wares,  or  merchandise  were  not  held  and 
had  not  been  received  in  good  faith,  according  to  the  purport  and 
effect  of  such  warehouse  receipt,  receipt,  acknowledgment,  or  instru- 

439 


BILLS   OF  LADING. 

ment  of  writing,  with  intent  to  defraud,  deceive,  or  injure  any  person 
whomsoever,  or  if  any  person  shall  indorse,  assign,  transfer,  or  de- 
liver, or  shall  attempt  to  indorse,  transfer,  or  deliver,  to  any  other 
person  any  such  false  and  fictitious  warehouse  receipt,  receipt,  ac- 
knowledgment, or  instrument  of  writing,  knowing  the  same  to  be 
false,  fraudulent,  or  fictitious,  such  person  shall  be  punished  by  im- 
prisonment in  the  penitentiary  not  more  than  three  years  nor  less 
than  one  year, 

NEW  YORK. 

[Revised  Statutes,  Codes,  and  Laws,  1889,  Vol.  II.,  page  1143.] 
§  2.  Factors.  Lien  when  not  to  exist. — The  lien  provided  for  in 
the  preceding  section,  shall  not  exist  w^here  such  consignee  shall  have 
notice,  by  the  bill  of  lading  or  otherwise,  at  or  before  the  advancing 
of  any  money  or  security  by  him,  or  at  or  before  the  receiving  of 
such  money  or  security  by  the  person  in  whose  name  the  shipment 
shall  have  been  made,  that  such  person  is  not  the  actual  and  bona 
fide  owner  thereof.     (Id.,  §  2.) 

§  3.  When  factor  deemed  ot^ner.— Every  factor  or  other  agent  in- 
trusted with  the  possession  of  any  bill  of  lading,  custom-house  permit, 
or  warehouse-keeper's  receipt  for  the  delivery  of  any  such  merchan- 
dise, and  every  such  factor  or  agent  not  having  the  documentary  evi- 
dence of  title,  who  shall  be  intrusted  with  the  possession  of  any  mer- 
chandise for  the  purpose  of  sale,  or  as  a  security  for  any  advances  to 
be  made  or  obtained  thereon,  shall  be  deemed  to  be  the  true  owner 
thereof,  so  far  as  to  give  validity  to  any  contract  made  by  such  agent 
with  any  other  person,  for  the  sale  or  disposition  of  the  whole  or  any 
part  of  such  merchandise,  for  any  money  advanced,  or  negotiable 
instrument  or  other  obligation  in  writing  given  by  such  other  person 
upon  the  faith  thereof.     (Id.  §  3.) 

§  11.  Fraud.  Issuing  fictitious  bills  of  lading. — A  person  being 
the  master,  owner,  or  agent  of  any  vessel,  or  oflicer  or  agent  of  any 
railway,  express,  or  transportation  company,  or  otherwise  being  or 
representing  any  carrier,  who  delivers  any  bill  of  lading,  receipt,  or 
other  voucher,  by  which  it  appears  that  merchandise  of  any  kind  has 
been  shipped  on  board  a  vessel,  or  delivered  to  a  railway,  express,  or 
transportation  company,  or  other  carrier,  unless  the  same  has  been  so 
shipped  or  delivered,  and  is  at  the  time  actually  under  the  control  of 
such  carrier,  or  the  master,  owner,  or  agent  of  such  vessel,  or  of  some 
officer  or  agent  of  such  company,  to  be  forwarded  as  expressed  in  such 
bill  of  lading,  receipt,  or  voucher,  is  punishable  by  imprisonment  not 
440 


ADDENDA. 


exceeding  one  year,  or  by  a  fine  not  exceeding  one  thousand  dollars, 
or  by  both.     (Penal  Code,  §  628.) 

§  12  Issuing  fictitious  warehouse  receipts.— K  person  carrying 
on  the  business  of  a  warehouseman,  wharfinger,  or  other  depositary 
of  property,  who  issues  any  receipt,  bill  of  lading,  or  other  voucher 
for  merchandise  of  any  kind  which  has  not  been  actually  received  upon 
the  premises  of  such  person,  and  is  not  under  his  actual  control  at 
the  time  of  issuing  such  instrument,  whether  such  instrument  is  issued 
to  a  person  as  being  the  owner  of  such  merchandise,  or  as  security 
for  any  indebtedness,  is  punishable  by  imprisonment  not  exceeding 
one  year,  or  by  a  fine  not  exceeding  one  thousand  dollars,  or  by  both. 

(Penal  Code,  §  629.) 

§  13.  Last  two  sections  qualified.— l^o  person  can  be  convicted  of 
an  offence  under  the  last  two  sections,  for  the  reason  that  the  con- 
tents of  any  barrel,  box,  case,  cask,  or  other  vessel  or  package  men- 
tioned  in  the  bill  of  lading,  receipt,  or  other  voucher  did  not  correspond 
with  the  description  given  in  such  instrument  of  the  merchandise  re- 
ceived, if  such  description  corresponds  substantially  with  the  marks, 
labels,'  or  brands  upon  the  outside  of  such  vessel  or  package,  unless 
it  appears  that  the  defendant  knew  that  such  marks,  labels,  or  brands 
were  untrue.     (Penal  Code,  §  630.) 

§  14.  Duplicate  receipts  must  he  marked.— A  person  mentioned  in 
sections  628  and  629,  who  issues  any  second  or  duplicate  receipt  or 
voucher,  of  a  kind  specified  in  those  sections,  at  a  time  while  a  former 
receipt  or  voucher  for  the  merchandise  specified  in  such  second  receipt 
is  outstanding  and  uncancelled,  without  writing  across  the  face  of  the 
same  the  word  "  duplicate,"  in  a  plain  and  legible  manner,  is  punish- 
able by  imprisonment  not  exceeding  one  year,  or  by  a  fine  not 
exceeding  one  thousand  dollars,  or  by  both.     (Penal  Code,  §  631.) 

§  15.  Selling,  etc.,  property  received  for  transportation  or  storage. 
—A  person  mentioned  in  sections  628  and  629,  who  sells  or  pledges 
any  merchandise  for  which  a  bill  of  lading,  receipt,  or  voucher  has 
been  issued  by  him,  without  the  consent  in  writing  thereto  of  the 
person  holding  such  bill,  receipt,  or  voucher,  is  punishable  by  im- 
prisonment not  exceeding  one  year,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  by  both.     (Penal  Code,  §  632.) 

§  16.  Bill  of  lading,  when  to  he  cancelled.— A.  person  mentioned 
in  section  629,  who  delivers  to  another  any  merchandise  for  which  a 
bill  of  lading,  receipt  or  voucher  has  been  issued,  unless  such  receipt 
or  voucher  bears  upon  its  face  the  words  "not  negotiable,"  plainly 
written  or  stamped,  or  unless  such  receipt  is  surrendered  to  be  can- 
celled at  the  time  of  such  delivery,  or  unless,  in  the  case  of  a  partial 

441 


BILLS   OF   LADING. 

delivery,  a  memorandum  thereof  is  indorsed  upon  such  receipt  or 
voucher'  is  punishable  by  imprisonment  not  exceeding  one  year,  or 
by  a  fine  not  exceeding  one  thousand  dollars,  or  by  both.     (Pen. 

Code,  §  633.) 

§  18.  Interest.— Demand  loans  of  five  thousand  dollars  and  up- 
ward, on  collateral,  may  bear  any  interest.  In  any  case  hereafter  in 
which  advances  of  money,  repayable  on  demand,  to  an  amount  not 
less  than  five  thousand  dollars,  are  made  upon  warehouse  receipts, 
bills  of  lading,  certificates  of  stocks,  certificates  of  deposit,  bills  of 
exchange,  bonds  or  other  negotiable  instruments  pledged  as  collateral 
security  for  such  repayment,  it  shall  be  lawful  to  receive  or  to  con- 
tract to  receive  and  collect,  as  compensation  for  making  such  ad- 
vances, any  sum  to  be  agreed  upon,  in  writing,  by  the  parties  to 
such  transaction.     (L.,  1882,  c.  237,  §  1.) 

Section  2  repeals  all  inconsistent  acts. 

[Vol.  3,  page  2718,  "  Shipping."] 
§  42.  3Iaking  false  manifest,  and  invoice,  etc.— A  person  guilty 
of  preparing,  making  or  subscribing,  a  false  ox  fraudulent  manifest, 
invoice,  bill  of  lading,  ship's  register  or  protest,  with  intent  to  de- 
fraud another,  is  punishable  by  imprisonment  in  a  state  prison  not 
exceeding  three  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.     (Pen.  Code,  §  577.) 

[Vol.  3,  page  3363,  "  Wrecks."] 

§  25.  Defacing  marks  upon  wrecked  property.— A.  person  who 
defaces  or  obliterates  the  marks  upon  wrecked  property,  or  in  any 
manner  disguises  the  appearance  thereof,  with  intent  to  prevent  the 
owner  from  discovering  its  identity,  or  who  destroys  or  suppresses 
any  invoice,  bill  of  lading  or  other  document  tending  to  show  the 
ownership  thereof,  is  guilty  of  a  misdemeanor.     (Pen.  Code,  §  372.) 

§  27.  Destroying  invoice. —  A  person  who  wilfully  destroys  or 
suppresses  an  invoice,  bill  of  lading,  or  any  other  document,  writing, 
or  thing  whatever,  which  tends  to  show  the  ownership  of  wrecked 
property,  is  guilty  of  a  misdemeanor.     (Pen.  Code,  §  437.) 

[Revised  Statutes,  Vol.  CXI.,  p.  2259,  etc.     L.  1858,  chap.  326.] 
An  Act  to  prevent  the  issue  of  false  receipts,  and  to  punish  fraudulent  trans- 
fers of  property  by  warehousemen,  wharfingers,  and  others. 

Sec.  1.    When  warehousemen,  etc.,  may  issue  receipts,  etc. — No 
warehouseman,  wharfinger,  public  or  private  inspector,  or  custodian 
442 


ADDENDA. 


Of  property,  or  other  person,  shall  issue  any  receipt,  acceptance  of  an 
order  or  other  voucher,  for  or  upon  any  goods,  wares,  merchandise, 
provisions,  grain,  flour,  or  other  produce  or  commodity,  to  ^"^  P^^' 
son  or  persons  purporting  to  be  the  owner  or  owners  thereof,  or 
entitled  or  claiming  to  receive  the  same,  unless  such  goods,  wares, 
merchandise,  provisions,  grain,  flour,  or  other  commodity,  shal  have 
been  actually  received  into  the  store  or  upon  the  premises  of  such 
warehouseman,  wharfinger,  inspector,  custodian,  or  other  person, 
and  shall  be  in  store  or  on  the  said  premises,  as  aforesaid,  and  under 
his  control  at  the  time  of  issuing  such  receipt,  acceptance,  or  voucher. 
(Thus  amended  by  L.  1866,  ch.  440.) 

Sec  2  No  receipt  to  be  issued  unless  goods  in  possession.— No 
warehouseman,  wharfinger,  or  other  person,  shall  issue  any  receipt 
or  other  voucher  upon  any  goods,  wares,  merchandise,  grain,  flour, 
or  other  produce  or  commodity,  to  any  person  or  persons  as  security 
for  any  money  loaned  or  other  indebtedness,  unless  such  goods, 
wares,  merchandise,  grain,  or  other  produce  or  commodity,  shall  be 
at  the  time  of  issuing  such  receipt  in  the  custody  of  such  warehouse- 
man wharfinger,  or  other  person,  and  shall  be  in  store  or  upon  the 
premises  and  under  his  control  at  the  time  of  issuing  such  receipt  or 
other  voucher,  as  aforesaid. 

Sec  3      Duplicate  receipts,  etc.-^o  warehouseman,  wharfinger, 
inspector,  custodian,  or  other  person,  shall  issue  any  second  or  dupli- 
cate receipt,  acceptance,  or  other  voucher,  for  or  upon  any  goods, 
wares,  merchandise,  provisions,  grain,  flour,  or  other  produce  or  com- 
modity  while  any  former  receipt,  acceptance  or  voucher,  for  or  upon 
any   such  goods,  wares,    merchandise,   provisions,  flour,    g^a^n,    or 
other  produce  or  commodity,  as  aforesaid,  or  any  part  thereof,  shall 
be  outstanding  and  uncancelled,  without  writing  in  ink  across  the 
face  of  the  same,  "  duplicate."     (Thus  amended  by  L,  1866  ch.  440.) 
Sec  4.     Shall  not  sell,  etc.—^o   warehouseman,  wharfinger,  or 
other  person,  shall  sell  or  encumber,  ship,  transfer,  or:  in  any  manner 
remove  beyond  his  immediate  control,  any  goods,  wares,  merchan- 
dise grain  flour,  or  othei:  produce  or  commodity,  for  which  a  receipt 
shall   have   been  given  by   him  as  aforesaid,  whether  received  for 
storing,  shipping,  grinding,  manufacturing,  or  other  purposes,  with- 
out the  written  assent  of  the  person  or  persons  holding  such  receipt. 

Sec  5.  No  master  to  sign  or  give  bill  of  lading  in  certain 
eases.— No  master,  owner,  or  agent  of  any  vessel  or  boat  of  any 
description,  or  officer  or  agent  of  any  railroad  company,  or  other 
person,  shall  sign  or  give  any  bill  of  lading,  receipt,  or  other  voucher 
or  document,  for  any  merchandise  or  property,  by  which  it  shall 

443 


BILLS   OF   LADING. 

appear  that  such  merchandise  or  property  has  been  shipped  on  board 
any  vessel,  boat,  or  railroad  car,  unless  the  same  shall  have  been 
actuallv  shipped  and  put  on  board,  and  shall  be  at  the  time  actually 
on  board  or  delivered  to  such  vessel,  boat,  or  car,  to  be  carried  and 
conveyed  as  expressed  in  such  bill  of  lading,  receipt,  or  other  voucher 
or  document. 

Sec.  6.  Warehouse  receipts  transferable. — Warehouse  receipts 
given  for  any  goods,  wares,  merchandise,  grain,  flour,  produce  or 
other  commodity,  stored  or  deposited  with  any  warehouseman, 
wharfinger  or  other  person,  may  be  transferred  by  indorsement  there- 
of; and  any  person  to  whom  the  same  may  be  so  transferred  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares  and  mer- 
chandise therein  specified,  so  far  as  to  give  validity  to  any  pledge, 
lien  or  transfer  made  or  created  by  such  person  or  persons ;  but  no 
property  shall  be  delivered  except  on  surrender  and  cancellation  of 
said  original  receipt,  or  the  indorsement  of  such  delivery  thereon  in 
case  of  partial  delivery.  All  warehouse  receipts,  however,  which 
shall  have  the  words  "not  negotiable,"  plainly  written  or  stamped 
on  the  face  thereof,  shall  be  exempt  from  the  provisions  of  this  sec- 
tion.    (See  L.  1859,  ch.  353,  post.) 

Sec.  7.  Penalty. — Any  warehouseman,  wharfinger,  inspector,  cus- 
todian, or  other  person,  who  shall  wilfully  violate  any  of  the  fore- 
going provisions  of  the  said  act,  as  hereby  amended,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  indictment  and  conviction,  shall 
be  fined  in  any  sum  not  exceeding  one  thousand  dollars,  or  imprison- 
ment not  exceeding  one  year,  or  by  both  such  fine  and  imprisonment ; 
and  all  and  every  person  or  persons  aggrieved  by  the  violation  of 
any  of  the  provisions  of  said  act,  as  hereinbefore  mentioned,  may 
have  and  maintain  an  action  at  law  against  the  person  or  persons 
violating  any  of  the  provisions  of  said  act  as  hereby  amended,  to 
recover  all  damages,  immediate  or  consequential,  which  he  or  they 
may  have  sustained  by  reason  of  any  such  violation  as  aforesaid,  be- 
fore any  court  of  competent  jurisdiction,  whether  such  person  shall 
have  been  convicted  as  hereinbefore  mentioned,  or  not.  (Thus 
amended  by  L.  1866,  ch.  440.) 

Sec.  8.  Limitation  of  act. — So  much  of  the  preceding  fourth  and 
sixth  sections  as  forbids  the  delivery  of  property  except  on  surrender 
and  cancellation  of  the  original  receipt,  or  the  indorsement  of  such 
delivery  thereon  in  case  of  partial  delivery,  shall  not  apply  to  prop- 
erty replevied  or  removed  by  operation  of  law. 
444 


ADDENDA. 

[L.  1859,  Chap.  353.] 

An  act  to  amend  the  act  erititled  "  An  act  to  prevent  the  isfiue  of 
false  receipts,  and  to  punish  fraudulent  transfers  of  property 
by  warehousemen,  wharfingers  and  other s,^^  passed  April  sev- 
enteenth, eighteen  hundred  and  fifty -eight. ^'' 

Amendment,  Sec,  1.  The  sixth  section  of  the  act  entitled  "  An 
act  to  prevent  the  issue  of  false  receipts,  and  to  punish  fraudulent 
transfers  of  property  by  warehousemen,  wharfingers  and  others,"  is 
hereby  amended  by  adding  at  the  end  of  said  section  the  following 
words:  "All  the  sections  of  the  act  hereby  amended,  shall  apply  to 
and  be  applicable  to  bills  of  lading,  and  to  all  persons  or  corporations 
that  shall  or  may  issue  bills  of  lading  of  any  kind  or  description,  the 
same  as  if  the  words  '  forwarder  and  bills  of  lading'  were  mentioned 
in  each  and  every  section  of  said  act." 

(This  act  is  given  in  full,  that  the  reader  may  judge  for  himself  as 
to  its  meaning.) 

OHIO. 

[Revised  Statutes,  1890,  Vol.  II.,  pages  2437-2442.] 

(9649)  Sec.  77.  Every  master  of  a  boat  or  float,  conveying  prop- 
erty on  either  of  the  canals,  shall  exhibit  to  the  several  collectors 
hereinafter  mentioned,  a  just  and  true  account,  or  bill  of  lading  of 
such  property,  signed  by  the  consignor  thereof,  and  containing,  first, 
the  name  of  each  place  on  the  canal  where  any  portion  of  such  prop- 
erty was  shipped,  and  the  place  for  which  it  is  intended  to  be  cleared, 
specifying  the  portion  shipped  at  each  of  such  places,  and  the  portion 
intended  to  be  cleared  to  each  place  ;  second,  a  statement  of  the 
weight  of  all  articles  of  such  property  on  which  toll  is  to  be  charged 
by  weight,  of  the  number  of  articles  on  which  toll  is  to  be  charged 
by  number,  and  of  the  feet  of  each  article  on  which  toll  is  to  be 
charged  by  the  foot ;  third,  a  specification  of  the  weight  or  quantity 
of  each  article  or  articles  on  which  one  rate  of  toll  is  to  be  char*ged, 
and  which  is  to  be  transported  to  one  place,  separately  from  other 
articles  on  which  a  different  rate  of  toll  is  charged,  or  which  is  to  be 
transported  to  a  different  place. 

(9650)  Sec.  78.  Every  such  account  or  bill  of  lading  shall  be  ex- 
hibited, first,  to  every  collector  of  whom  a  clearance  shall  be  required; 
second,  to  every  collector  whose  office  shall  be  next  in  order  in  the 
course  of  the  voyage,  to  the  place  where  the  clearance  shall  have 
been  granted  ;  third,  to  every  collector  at  a  place  where  any  portion 

445 


BILLS   OF  LADING. 

of  the  cargo  shall  be  unladen,  or  any  additional  cargo  received ;  and 
if  there  be^'no  collector  at  such  place,  to  the  collector  whose  office  shall 
be  next  in  order  in  the  course  of  the  voyage ;  fourth,  to  every  other 
collector  who  shall  demand  such  account  or  bill  of  lading  to  be  ex- 
hibited. 

(9651)  Sec.  79.  If  any  property  shall  be  received  on  board  of  any 
boat  or  other  float,  for  the  purpose  of  being  transported  on  either  of 
the  canals,  during  any  voyage,  after  such  boat  or  float  shall  have 
proceeded  one  mile  from  the  place  at  which  a  clearance  for  the  voy- 
age was  granted,  an  account  or  bill  of  lading  thereof,  conforming  to 
all  the  requisitions  hereinbefore  stated,  shall  be  exhibited  to  the  col- 
lector whose  office  shall  be  next  in  order  in  the  course  of  the  voyage, 
to  the  place  where  such  property  was  received  on  board,  to  whom  the 
full  amount  of  tolls  chargeable  on  such  property  shall  be  paid ;  and 
such  boat  or  float  shall  not  be  permitted  to  proceed  on  such  voyage 
beyond  the  office  at  which  the  tolls  on  such  property,  so  received  on 
board,  are  payable,  until  the  full  amount  of  such  tolls  are  paid. 

(9652)  Sec.  80.  When  any  cargo  shall  be  taken  on  board  of  any 
boat  or  float,  after  such  boat  or  float  shall  have  left  the  place  where  a 
clearance  was  granted,  as  specified  in  the  preceding  section,  the  ac- 
count or  bill  of  lading  of  such  property  shall  be  exhibited  to  the  col- 
lector whose  office  shall  be  next  in  order  in  the  course  of  the  voyage, 
to  the  office  at  which  the  tolls  on  such  additional  cargo  are  required 
to  be  paid,  and  to  every  other  collector  who  shall  demand  it  to  be 
exhibited. 

(9653)  Sec.  81.  If  there  be  no  collector's  office  within  one  mile  of 
the  place  where  a  voyage  on  the  canal  shall  be  commenced,  nor  with- 
in one  mile  of  the  place  where  the  same  shall  terminate,  nor  at  a&y 
intermediate  place,  the  master  of  the  boat  or  other  float  shall,  within 
ten  days  after  the  termination  of  such  voyage,  exhibit  a  true  account 
thereof,  or  bill  of  the  lading  transported  on  board  of  such  boat  or 
float,  at  any  time  during  such  voyage,  to  the  collector  whose  office 
shall  be  nearest  to  the  place  where  such  voyage  terminated,  and  shall 
pay  to  such  collector  the  tolls  due  on  such  boat  or  float  and  lading ; 
and  every  master  who  shall  neglect  to  exhibit  such  account  and  bill, 
and  to  pay  such  tolls,  within  the  period  above  limited,  shall,  for  every 
such  offence,  forfeit  the  sum  of  twenty-five  dollars. 

(9654)  Sec.  82.  Every  master  of  a  boat  or  other  float  navigating 

either  of  the  canals,  who  shall  omit  to  exhibit  or  deliver  a  true  bill 

of  lading  to  any  collector,  or  to  pay  the  tolls  thereon  when  required, 

or  shall  deliver  any  article  mentioned  in  a  bill  of  lading  at  a  place 

446 


ADDENDA. 

beyond  that  to  which  such  article  shall  have  been  cleared,  shall  for- 
feit the  sum  of  twenty-five  dollars. 

(9655)  Sec.  83.  Every  person  who  shall  sign  or  deliver  to  any  col- 
lector a  false  bill  of  lading,  shall  pay  on  all  property  omitted  in  such 
false  bill,  treble  the  established  rates  of  toll  chargeable  thereon,  to 
any  collector  who  shall  be  satisfied  of  such  omission  for  the  whole 
distance  such  property  is  conveyed  on  the  canal. 

(9656)  Sec.  84.  Every  person  who  shall  knowingly  sign  or  deliver 
a  false  bill  of  lading,  shall  be  deemed  guilty  of  a  misdemeanor ;  and 
upon  conviction  thereof  before  any  court  of  competent  jurisdiction, 
shall  be  fined  not  less  than  three  times  the  value  of  the  property 
omitted  or  falsely  stated  in  such  bill. 

(9657)  Sec.  85.  Every  collector  receiving  a  bill  of  lading,  may 
require  the  master  exhibiting  it  to  verify  it  by  his  oath,  which  such 
collector  is  authorized  to  administer. 

(9659)  Sec.  87.  If,  on  unloading  any  boat  or  float,  it  shall  be  dis- 
covered that  the  cargo,  in  consequence  of  an  unintentional  error, 
exceeds  the  quantity  stated  in  the  bill  or  bills  of  lading,  it  shall  be 
the  duty  of  the  master  of  such  boat  or  float,  immediately  to  report 
such  overplus,  and  pay  the  lawful  tolls  thereon,  to  the  collector  at  the 
place  where  such  error  may  be  discovered,  if  there  be  any  collector  at 
such  place ;  and  if  there  be  no  collector  at  such  place,  to  the  next 
collector,  at  or  near  whose  office  the  boat  shall  arrive,  after  the  dis- 
covery of  such  error  is  made  ;  and  any  master  of  a  boat  or  float,  who 
shall  fail  to  comply  with  the  requisition  of  this  section,  shall  forfeit 
and  pay  the  sum  of  ten  dollars,  besides  double  tolls  on  all  property 
omitted  in  the  bill  or  bills  of  lading. 

(9666)  Sec.  94.  Whenever  a  difference  shall  arise  between  a  col- 
lector and  the  master  of  any  boat  or  float,  as  to  the  amount  of  tolls 
chargeable  on  the  lading  of  such  boat  or  float,  the  collector  shall 
detain  the  boat  or  float  and  the  articles  on  which  toll  is  to  be  charged 
and  shall  weigh,  count,  or  measure  the  articles  as  the  case  may  re- 
quire ;  and  if  it  shall  be  ascertained  that  the  weight,  number,  or  feet 
exceeds  the  amount  stated  in  the  bill  of  lading  thereof,  the  collector 
shall  charge  tolls  according  to  the  weight,  number,  or  feet  thus  found ; 
and  the  master  shall  pay  to  the  collector  the  expense  of  such  weigh- 
ing, counting,  or  measuring ;  and  such  expense  shall  be  chargeable 
on  such  articles,  and  on  the  boat  or  float  containing  them. 

(9679)  Sec.  107.  It  shall  be  the  duty  of  every  collector  to  whom 
bills  of  lading  are  required  to  be  presented  in  order  to  obtain  a  clear- 
ance for  any  voyage,  agreeably  to  the  seventy-fifth  (seventy-seventh) 

447 


BILLS   OF   LADING.     ' 

and  seventy-sixth  (seventy-eighth)  sections  of  this  act  to  make  out 
from  such  bill  or  bills  of  lading  in  a  book  to  be  provided  by  him  for 
that  purpose,  a  certificate  containing  a  pertinent  description  of  the 
articles  composing  the  cargo  of  the  boat  or  float,  or  composing  such 
float  for  w^hich  clearance  is  about  to  be  issued,  properly  classified  and 
designated  with  reference  to  the  rates  and  amount  of  tolls  chargeable 
thereon  ;  which  certificate  shall  be  signed  by  the  master  of  such  boat 
or  float,  who  shall  also  attest  on  oath  or  affirmation  to  the  correctness 
thereof  if  required  by  the  collector,  before  the  clearance  for  such 
boat  or  float  shall  be  issued. 

(9681)  Sec.  109.  Every  master  of  any  boat  or  float,  who  shall,  in 
any  respect,  refuse  to  comply  with  the  requirements  of  the  two  pre- 
ceding sections,  or  who  shall  sign  a  false  certificate,  shall,  for  every 
such  refusal  or  oflTence,  forfeit  the  sum  of  twenty-five  dollars. 

(9683)  Sec.  111.  On  the  arrival  of  any  boat  or  float  at  the  place  of 
destination,  or  at  any  place  in  the  course  of  the  voyage  where  there 
is  a  collector's  office,  if  in  the  day-time,  the  master  thereof  shall 
immediately  present  to  the  collector  the  bill  or  bills  of  lading,  as 
required  by  the  seventy-sixth  (seventy-eighth),  seventy-seventh 
(seventy-ninth)  and  seventy-eighth  (eightieth)  sections  of  this  act, 
together  with  the  clearance  and  list  of  passengers ;  and  if  such  boat 
or  float  shall  arrive  in  the  night-time,  the  same  shall  be  presented 
between  the  time  of  arrival  and  one  hour  after  sunrise. 

(9686)  Sec.  114.  No  part  of  the  cargo  of  any  boat  or  float,  nor 
any  article  composing  such  float,  or  any  part  thereof,  shall  be  unladen, 
landed  or  removed  from  the  canal,  at  the  termination  of  any  voyage 
on  such  canal,  nor  at  any  place  on  the  canal  within  one  mile  of  a 
collector's  office,  until  the  clearance,  together  with  the  bill  or  bills 
of  lading,  of  the  whole  cargo  of  such  boat  or  float,  shall  have  been 
presented  to  the  proper  collector,  and  a  permit  obtained  from  such 
collector  for  such  unlading,  landing  or  removal ;  which  permit  such 
collector  is  hereby  required  to  grant,  after  a  reasonable  time  shall 
have  elapsed  for  the  examination  of  such  clearance,  bills  of  lading 
and  cargo,  and  on  the  payment  of  all  tolls  which  shall  remain  due ; 
and  for  every  violation  of  the  provisions  of  this  section,  the  master 
of  such  boat  or  float  shall  forfeit  and  pay  the  sum  of  ten  dollars,  and 
also  double  the  amount  of  tolls,  chargeable  on  the  article  or  articles 
so  unlawfully  landed,  removed,  or  unladen ;  provided,  that  in  all 
cases  where  any  boat  shall  be  in  a  leaky  condition,  or  from  any  other 
cause,  goods  or  property  on  board  any  such  boat  shall  be  in  danger 
of  damage  or  perishing  by  delay,  and  the  proper  collector  cannot  be 
448 


ADDENDA. 

found,  such  goods  or  property  may  be  landed  or  secured  until  such 
collector  may  be  found,  and  a  permit  obtained  for  the  further  removal 
of  the  same. 

[Criminal  Code,  1890,  page  253.] 
Sec.  7085.  False  or  fictitious  bills  of  lading.— Whoever  executes 
and  delivers  to  any  person  any  false  or  fictitious  bill  of  lading,  receipt, 
schedule,  invoice,  or  other  written  instrument,  to  the  purport  or  effect 
that  any  property  usually  transported  by  carriers  had  been  or  was 
held,  delivered,  received,  or  deposited  on  board  of  any  steamboat  or 
water-craft  navigating  the  waters  in  or  bordering  upon  the  State  of 
Ohio,  or  at  the  freight  office,  depot,  station,  or  other  place  designated 
or  used  by  any  railroad  company,  or  other  common  carrier,  for  the 
reception  of  any  such  property,  when  such  property  was  not  held, 
or  had  not,  in  fact  and  in  good  faith,  been  delivered,  received,  or 
deposited  on  board  such  steamboat  or  other  water-craft,  or  at  such 
place,  at  the  time  such  written  instrument  was  made  and  delivered, 
with  intent  to  defraud,  or  indorses,  assigns,  transfers,  or  puts  off,  or 
attempts  to  indorse,  assign,  transfer,  or  put  off,  any  such  false  or 
fictitious  bill  of  lading,  receipt,  invoice,  schedule,  or  other  written 
instrument,  knowing  the  same  to  be  false,  fraudulent,  or  fictitious, 
shall  be  imprisoned  in  the  penitentiary  not  more  than  four  years  nor 
less  than  one  year. 

OREGON. 

[Hill's  Annotated  Laws,  1887,  Vol.  I.,  page  917.] 
§  1782.  Making  or  exhibiting  false  bill  of  lading  with  intent  to 
injure  insurer.  If  the  owner  of  any  ship,  steamboat,  or  other 
vessel,  or  of  any  property  laden  or  pretended  to  be  laden  on  board 
the  same,  or  if  any  other  person  concerned  or  assisting  in  the  fitting 
out  or  lading  of  any  such  ship,  steamboat,  or  other  vessel,  shall  make 
out  or  exhibit,  or  cause  to  be  made  out  or  exhibited,  any  false  or 
fraudulent  invoice,  bill  of  lading,  bill  of  parcels,  or  other  false  esti- 
mate of  any  property  laden  or  pretended  to  be  laden  on  board  of  such 
ship,  steamboat,  or  other  vessel,  with  intent  to  injure  or  defraud  any 
insurer  of  such  ship,  steamboat,  or  other  vessel  or  property,  or  any 
part  thereof,  such  person,  upon  conviction  thereof,  shall  be  punished 
by  imprisonment  in  the  penitentiary  not  less  than  six  months  nor 
more  than  three  years. 

29  449 


BILLS   OF   LADING. 

PENNSYLVANIA. 

[Purdon's  Digest,  1883,  p.  145  ;  Pamphlet  Laws,  1363  ;  Act  24  Sept.  1866.] 


Property  not  to  be  delivered  except 
on  surrender  of  receipt,  etc.,  sees.  1 
and  4. 


Warehouse  receipts  and  bills  of  lading 

to  be  negotiable,  sec.  1. 
How  transferable,  sec.  1. 
Lien  of  holder,  sec.  1. 

Section  1.  All  warehouse  receipts  and  bills  of  lading  marked 
"not  negotiahle^^  are  excepted  from  the  provisions  of  this  act. — 
Warehouse  receipts  given  for  any  goods,  wares,  merchandise,  grain, 
flour,  produce,  petroleum  or  other  commodities,  stored  or  depos- 
ited with  any  warehouseman,  wharfinger  or  other  person  in  this 
State,  or  bills  of  lading,  or  receipts  for  the  same,  when  in  transit 
by  cars  or  vessels  to  any  such  warehouseman,  wharfinger  or  other 
person,  shall  be  negotiable,  and  may  be  transferred  by  indorsement 
and  delivery  of  said  receipt  or  bill  of  lading ;  and  any  person  to 
whom  the  said  receipt  or  bill  of  lading  may  be  so  transferred,  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares  and  mer- 
chandise therein  specified,  so  as  to  give  security  and  validity  to  any 
lien  created  on  the  same,  subject  to  the  payment  of  freight  and 
charges  thereon ;  and  no  property  on  which  such  lien  may  have  been 
created,  shall  be  delivered  by  said  warehouseman,  wharfinger  or  other 
person,  except  on  the  surrender  and  the  cancellation  of  said  original 
receipt  or  bill  of  lading ;  or,  in  case  of  partial  sale  or  release  of  the 
said  merchandise,  by  the  written  assent  of  the  holder  of  said  receipt 
or  bill  of  lading,  indorsed  thereon ;  provided,  that  all  warehouse 
receipts  or  bills  of  lading,  which  shall  have  the  words,  "not  nego- 
tiable," plainly  written  or  stamped  on  the  face  thereof,  shall  be 
exempt  from  the  provisions  of  this  act. 

Sec.  2.  No  receipt  to  be  given  unless  the  goods  have  been  actually 
received. — No  warehouseman,  wharfinger  or  other  person,  shall  issue 
any  receipt  or  voucher  for  any  goods,  wares,  merchandise,  petroleum, 
grain,  flour  or  other  produce  or  commodity,  to  any  person  or  persons, 
purporting  to  be  the  owner  or  owners  thereof,  unless  such  goods, 
wares,  merchandise,  petroleum,  grain,  flour  or  other  produce  or  com- 
modity, shall  have  been  actually  received  into  store,  or  upon  the 
premises  of  such  warehouseman,  wharfinger  or  other  person,  and 
shall  be  in  store,  or  on  the  premises  aforesaid,  and  under  his  control, 
at  the  time  of  issuing  such  receipt. 

Sec.  3.  Duplicate  receipts  to  be  so  indorsed. — No  warehouseman, 
wharfinger  or  other  person  shall  issue  any  second  or  duplicate  receipt 
for  any  goods,  wares,  merchandise,  petroleum,  grain,  flour  or  other 
450 


ADDENDA. 

produce  or  commodity,  while  any  former  receipt  for  any  such  goods, 
wares,  merchandise,  petroleum,  grain,  flour  or  other  produce  or  com- 
modity as  aforesaid,  or  any  part  thereof,  shall  be  outstanding  and 
uncalled,  without  writing  across  the  face  of  the  same,  "  duplicate." 

Sec.  4.  Property  not  to  he  disposed  of,  without  return  of  receipt. 
— No  warehouseman,  wharfinger  or  other  person  shall  sell  or  incum- 
ber, ship,  transfer,  or  in  any  manner  remove  beyond  his  immediate 
control,  any  goods,  wares,  merchandise,  petroleum,  grain,  flour  or 
other  produce  or  commodity,  for  which  a  receipt  shall  have  been 
given  him  as  aforesaid,  whether  received  for  storage,  shipping,  grind- 
ing, manufacturing  or  other  purposes,  without  the  return  of  such 
receipt. 

Sec.  5.  Penalty  for  violation  of  the  provisions  of  this  act. — Any 
warehouseman,  wharfinger  or  other  person,  who  shall  violate  any  of 
the  foregoing  provisions  of  this  act,  shall  be  deemed  guilty  of  fraud ; 
and  upon  indictment  and  conviction,  shall  be  fined  in  any  sum  not 
exceeding  one  thousand  dollars,  or  imprisoned  in  one  of  the  state 
prisons  of  this  state,  not  exceeding  five  years  or  both ;  and  all  and 
every  person  or  persons  aggrieved  by  the  violation  of  any  of  the 
provisions  of  this  act,  may  have  and  maintain  an  action  at  law, 
against  the  person  or  persons  violating  any  of  the  foregoing  pro- 
visions of  this  act,  to  recover  all  damages  which  he  or  they  may 
have  sustained  by  reason  of  any  such  violation  as  aforesaid,  before 
any  court  of  competent  jurisdiction,  whether  such  person  shall  have 
been  convicted  of  fraud  as  aforesaid,  under  this  act,  or  not. 

Sec.  6.  The  provisions  of  the  foregoing  act  shall  apply  to  errain 
stored  in  grain  elevators,  and  to  petroleum  in  barrels,  stored  or  kept 
in  places  designated  by  law  ;  and  the  owners  or  lessees  of  any  of  said 
elevators  or  places  designated  as  aforesaid,  shall  have  the  rights  and 
powers,  and  be  subject  to  the  obligations  and  penalties  as  therein  pro- 
vided, in  regard  to  warehousemen,  wharfingers,  or  other  persons. 

Act  24  Sept.  1866,  extending  the  provisions  of  said  act  to  grain 
stored  in  elevators,  and  to  petroleum,  repealed  by  the  act  28  March 
1870,  P.  L.  41. 

Sec.  7.  Attachment  of  goods  in  the  hands  of  bailees  regulated, 
holder  of  receipt  to  be  deemed  garnishee,  dissolution  of  attach- 
ment.— Whenever  any  goods,  wares,  or  merchandise  shall  have  been, 
or  shall  hereafter  be  attached,  by  writ  of  foreign  or  other  attachment, 
in  the  hands,  possession  or  custody  of  any  warehouseman,  wharfinger 
or  other  person,  who  shall  have  issued  for  the  same  any  w^arehouse 
receipt  or  voucher,  or  any  bill  of  lading  or  other  receipt,  when  in 
transit  by  car  or  vessel,  which  warehouse  receipt,  voucher,  bill  of 

451 


BILLS   OF   LADING. 

lading  or  other  receipt,  shall  have  been  negotiated  and  transferred  by 
indorsement  or  delivery,  as  provided  in  the  act  to  which  this  is  a  sup- 
plement, the  holder  of  any  such  warehouse  receipt,  voucher,  bill  of 
ladino-or  other  receipt,  to  whom  the  same  shall  have  been  transferred 
or  delivered  as  aforesaid,  although  not  named  or  summoned  in,  or 
served  with  such  writ  of  attachment,  shall  nevertheless  be  deemed 
and  taken  to  all  intents  to  be  a  garnishee  of  the  said  goods,  wares, 
or  merchandise  attached  in  the  said  writ  as  if  the  same  were  in  his 
hands  or  possession ;  and  the  name  of  the  holder  of  such  warehouse 
receipt,  voucher,  bill  of  lading  or  other  receipt  shall,  upon  application 
to  the  court  wherefrom  such  writ  has  issued,  be  added  to  the  record 
of  the  action  as  a  garnishee  of  the  said  goods,  wares,  or  merchandise ; 
and  thereupon  the  said  court  shall,  upon  the  motion  of  the  said  gar- 
nishee, grant  a  rule  upon  the  plaintiff  in  such  attachment  to  appear 
before  the  court  at  the  time  and  place  in  such  rule  named,  and  there 
show  cause  why  the  attachment  of  such  goods,  wares,  or  merchandise 
should  not  be  dissolved,  or  the  proceeds  thereof,  if  the  same  shall 
have  been  sold  by  the  order  of  the  said  court,  paid  to  the  holder  of 
such  warehouse  receipt,  voucher,  bill  of  lading  or  other  receipt,  upon 
his  giving  security  as  such  garnishee,  by  recognizance  and  sufficient 
sureties  to  be  approved  by  the  court,  or  by  one  of  the  judges  thereof 
in  vacation,  with  condition  that  so  much  of  the  said  goods,  wares,  or 
merchandise,  or  of  the  proceeds  thereof,  after  the  sale  of  the  whole  or 
any  part  thereof,  as  shall  remain  after  the  settlement  or  payment 
thereout,  of  the  amount  of  any  lien  upon  the  said  goods,  wares,  or 
merchandise  created  by  the  advance  of  money  or  credit  by  the  said 
holder  of  such  warehouse  receipt,  voucher,  bill  of  lading  or  other 
receipt,  transferred  or  delivered  as  aforesaid,  and  also  of  all  prior 
liens  for  storage,  freight  and  other  charges,  shall  be  retained  in  the 
hands  of  the  said  garnishee,  to  answer,  if  the  plaintiff  shall  have  exe- 
cution of  any  judgment  of  the  effects  of  the  defendant  in  the  action 
attached  as  aforesaid,  or  to  abide  the  further  order  of  the  said  court. 

Sec.  8.  Bailees  not  to  be  liable,  when  the  property  is  taken  from, 
them  by  legal  pi^ocess. — Where  goods,  wares,  or  merchandise  shall 
be  taken  from  the  possession  of  any  warehouseman,  wharfinger,  car- , 
rier,  or  other  bailee  by  writ  of  attachment,  replevin,  or  other  legal 
process,  such  warehouseman,  wharfinger,  carrier  or  other  bailee  shall 
not  be  liable  therefor  to  the  owner  of  such  goods,  wares  or  merchan- 
dise, or  to  the  holder  of  any  receipt,  voucher  or  bill  of  lading  given 
for  the  same ;  saving  and  reserving,  however,  to  such  owner  or 
holder  all  legal  remedies  for  the  recovery  of  the  said  goods,  wares  or 
452 


ADDENDA. 

merchandise  from  any  person  unlawfully  detaining  the  same,  or  for 
the  recovery  of  damages  against  any  person  unlawfully  taking  the 
same. 

RHODE  ISLAND. 

[Public  Statutes  of  1882,  page  332.] 

§  2.  Qualified  ownership  of  goods  for  certain  purposes  and  in 
hands  of  certain  persons. — Every  person  intrusted  with  and  in  the 
possession  of  goods  for  the  purpose  of  sale,  or  of  any  bill  of  lading, 
receipt,  or  certificate  of  a  warehouse-keeper  or  inspector,  or  of  any 
warrant  or  order  for  the  delivery  of  goods,  shall  be  deemed  the  true 
owner  of  the  goods  so  by  him  possessed  or  described  in  either  of  said 
instruments  in  favor  of  the  purchaser  or  pledgee  of  such  goods  for 
money  or  negotiable  security,  provided  such  purchaser  or  pledgee  at 
the  time  of  payment  or  advance  as  aforesaid  shall  have  had  no  notice 
or  knowledge  that  the  possessor  of  such  goods  or  instrument  was  not 
the  true  owner  of  such  goods  by  him  possessed  or  in  such  instrument 
described. 

TEXAS. 

[Sayles's  Civil  Statutes,  1888.] 

Art.  278.  Carriers  cannot  limit  their  responsibility. — Railroad 
companies  and  other  common  carriers  of  goods,  wares  and  merchan- 
dise for  hire,  within  this  State,  on  land  or  in  boats  or  vessels  on  the 
waters  entirely  within  the  body  of  this  State,  shall  not  limit  or  restrict 
their  liability  as  it  exists  at  common  law,  by  any  general  or  special 
notice,  or  by  inserting  exceptions  in  the  bill  of  lading  or  memorandum 
given  upon  the  receipt  of  the  goods  for  transportation,  or  in  any 
other  manner  whatever,  and  no  special  agreement  made  in  contraven- 
tion of  the  foregoing  provisions  of  this  article  shall  be  valid.  (Act 
December  4,  1863;  10  Leg.,  p.  1.) 

Art.  280.  llust  give  bill  of  lading. — Common  carriers  are  re- 
quired, when  they  receive  goods  for  transportation,  to  give  to  the 
shipper,  when  it  is  demanded,  a  bill  of  lading  or  memorandum  in 
writing,  stating  the  quantity,  character,  order,  and  condition  of  the 
goods;  and  such  goods  shall  be  delivered  in  the  manner  provided 
by  common  law,  in  like  order  and  condition  to  the  consignee,  the 
unavoidable  wear  and  tear  and  deterioration  in  due  course  of  trans- 
portation only  excepted ;  and  in  case  such  common  carriers  shall  fail 
to  deliver  goods  as  above  required,  they  shall  be  liable  to  the  party 
injured  for  his  damages,  as  at  common  law;  and  in  case  of  their 

453 


BILLS   OF   LADING. 

refusal  to  execute  and  deliver  a  bill  of  lading  or  memorandum  in 
writing,  as  above  required,  they  shall  be  liable  to  a  penalty  of  not 
less  than  five  nor  more  than  five  hundred  dollars,  to  be  recovered  as 
in  the  preceding  article.     (Act  February  4,  1860;  8  Leg.,  p.  38.) 

Art.  283.  Shall  forward  in  good  order. — Where  common  carriers 
receive  goods  for  transportation  into  their  warehouses  or  depots,  they 
shall  forward  them  in  the  order  in  which  they  aire  received,  the  first 
received  to  be  the  first  forwarded,  without  giving  the  preference  to 
one  over  another,  and  in  case  they  shall  fail  to  do  so,  they  shall  be 
liable,  absolutely,  for  all  losses  occurring  while  the  goods  remain,  and 
for  all  damages  occasioned  or  in  anywise  resulting  from  the  delay ; 
provided,  that  the  trip  or  voyage  shall  be  considered  as  having  com- 
menced from  the  time  of  the  signing  of  the  bill  of  lading,  and  the 
liability  of  the  common  carrier  shall  attach,  as  at  common  law,  from 
and  after  such  signing.     (Act  February  4,  1860;  8  Leg.,  p.  38.) 

VIRGINIA. 

[Code  of  1887,  Chapter  LV.] 

Sec.  1295.  Liability  of  carrier  for  loss  or  injury  to  goods. — 
When  a  common  carrier  accepts  for  transportation  anything  directed 
to  a  point  of  destination  beyond  the  terminus  of  his  own  line  or  route, 
he  shall  be  deemed  thereby  to  assume  an  obligation  for  its  safe  car- 
riage to  such  point  of  destination,  unless,  at  the  time  of  such  accept- 
ance, such  carrier  be  released  or  exempted  from  such  liability  by 
contract  in  writing,  signed  by  the  owner  or  his  agent ;  and,  although 
there  be  such  contract  in  writing,  if  such  thing  be  lost  or  injured,  such 
common  carrier  shall  himself  be  liable  therefor,  unless,  within  a 
reasonable  time  after  demand  made,  he  shall  give  satisfactory  proof 
to  the  consignor  that  the  loss  or  injury  did  not  occur  while  the  thing 
was  in  his  charge. 

Sec.  1296.  What  agreement  by  carrier  invalid. — No  agreement 
made  by  a  common  carrier  for  exemption  from  liability  for  injury  or 
loss  occasioned  by  his  own  neglect  or  misconduct  shall  be  valid. 

WISCONSIN. 

[Sanborn  and  Berryman's  Annotated  Statutes,  1889.] 

Sec.  4194.  Transferree  of  warehouse  receipt,  etc.,  deemed  owner. 
— Warehouse  receipts,  bills  of  lading,  or  railroad  receipts  given  for 
any  goods,  wares,  merchandise,  lumber,  timber,  grain,  flour,  or  other 
produce  or  commodity  stored,  shipped  or  deposited  with  any  ware- 

454 


ADDENDA. 

houseman,  wharfinger,  vessel,  boat  or  railroad  company,  or  other 
person,  on  the  face  of  which  shall  not  be  plainly  written  the  words 
"  not  negotiable,"  may  be  transferred  by  delivery,  with  or  without 
indorsement  thereof;  and  any  person  to  whom  the  same  may  be  so 
transferred  shall  be  deemed  and  taken  to  be  the  owner  of  the  goods, 
wares,  and  merchandise  therein  specified,  so  far  as  to  give  validity  to 
any  pledge,  lien,  or  transfer  made  or  created  by  such  person  or  per- 
sons ;  but  no  such  property  shall  be  delivered,  except  on  surrender 
and  cancellation  of  said  original  receipt  or  bill  of  lading,  or  the 
indorsement  of  such  delivery  thereon,  in  case  of  partial  delivery. 

Sec.  6,  ch.  340,  1860,  as  amended  by  sec.  6,  ch.  73,  1863,  slightly 
condensed. 

Sec.  4424.  False  receipts  by  warehouseman,  vessel  master,  rail- 
road officer,  etc. — Any  warehouseman,  wharfinger,  master  of  a  ves- 
sel or  boat,  or  any  officer,  agent,  or  clerk  of  any  railroad,  express,  or 
transportation  company,  who  shall  issue  any  receipt,  bill  of  lading, 
voucher,  or  other  document,  to  any  person  purporting  to  be  the 
owner  thereof,  or  as  security  for  any  loan  or  indebtedness,  for  any 
goods,  wares,  merchandise,  lumber,  timber,  grain,  flour,  or  other 
property,  produce,  or  commodity,  unless  at  the  time  of  issuing  the 
same  such  property  shall  have  been  actually  received  or  shipped 
according  to  the  terms  and  meaning  of  such  receipt,  bill  of  lading, 
voucher,  or  other  document,  without  the  consent  of  the  holder  thereof, 
or  who  shall  deliver  any  such  property  or  any  part  thereof,  except  to 
the  person  holding  such  receipt,  bill  of  lading,  voucher,  or  other  doc- 
ument, and  upon  the  surrender  and  cancellation  thereof,  or  in  case  of 
any  partial  delivery  of  such  property,  upon  the  indorsement  thereon 
of  such  partial  delivery,  unless  required  by  legal  process,  or  shall 
issue  any  second  or  duplicate  receipt,  or  bill  of  lading,  for  any  such 
property,  while  any  former  receipt,  or  bill  of  lading,  for  any  such 
property,  or  any  part  thereof,  shall  be  outstanding  and  uncancelled 
without  writing  across  the  face  thereof  the  word  "duplicate,"  shall 
be  punished  by  imprisonment  in  the  state  prison  not  more  than  three 
years  nor  less  than  one  year,  or  by  imprisonment  in  the  county  jail 
not  more  than  one  year,  or  by  fine  not  exceeding  one  thousand 
dollars. 

Sec.  4425.  Warehouse  receipts,  negotiability  of. — Any  such  re- 
ceipt, bill  of  lading,  voucher,  or  other  document  as  is  mentioned  in 
the  preceding  section,  shall  be  transferable  by  delivery  thereof,  with- 
out indorsement  or  assignment,  and  any  person  to  whom  the  same  is 
so  transferred  shall  be  deemed  and  taken  to  be  the  owner  of  the 
property  therein  specified,  so  far  as  to  give  validity  to  any  pledge, 

455 


BILLS    OF   LADING. 

lien,  or  transfer  made  or  created  bj  such  person,  unless  such  receipt, 
bill  of  ladino;,  voucher,  or  other  document,  shall  have  the  words  "  not 
negotiable."  plainly  written  or  stamped  on  the  face  thereof. 

Sec.  4428.  False  hill  of  lading. — Any  owner  of  any  ship,  steam- 
boat, or  vessel,  or  of  any  property  laden,  or  pretended  to  be  laden,  on 
board  the  same,  or  any  other  person  concerned  in  the  lading  or  fitting 
out  of  any  such  ship,  steamboat,  or  vessel,  who  shall  make  out  or  ex- 
hibit, or  cause  to  be  made  out  or  exhibited,  any  false  or  fraudulent 
invoice,  bill  of  lading,  bill  of  parcels,  or  other  false  estimates  of  any 
goods  or  property,  laden  or  pretended  to  be  laden  on  board  such 
vessel,  with  intent  to  injure  or  defraud  any  insurer  of  such  vessel  or 
property,  or  of  any  part  thereof,  shall  be  punished  by  imprisonment 
in  the  state  prison  not  more  than  three  years  nor  less  than  one  year, 
or  by  fine  not  exceeding  one  thousand  dollars  nor  less  than  three 
hundred  dollars. 

456 


TABLE  OF  CASES. 


[references  are  to  the  sections.] 


SECTION 

Abbe  V.  Eaton,   51   N.  Y.  411 

25,  31,  364 
Acatos  V.  Burns,  47  L.  J.  (N. 

S.)  2  Q.  B.  566  283,  286,  287 

Ackerman   v.   Redfield,    9    Hun 

(N.  y.),  378  378 

Ackley  v.  Kellogg,  8  Cow.  (N. 

Y.)  223  197 

Adams  v.  Crosby,  2  Nov.  Scot. 

Law  Rep.  (R.  &*G.)  331  165 

Adams  Ex.  Co.  v.  Boskowitz,107 

.    111.  660       64,  77,  80 
V.   Fendrick,    38 

Ind.  150       114,  272 
U.Guthrie,  9  Bush 

(Ky.),  78  117 

v.  Haynes,  42  111. 

89  153 

V.  Loeb,  7  Bush 

(Ky.),  499  117 

V.  No'ck,  2  Duv. 

562  117,  127 

V.     Reagan,     29 
Ind.  21 

114,  387,  393 
V.    Sharpless,   77 
Pa.  St.  516 

133,  226 
V.  Stettaners,   61 
111.  184 

113,  142,  153 
V.  Wilson,  81  111. 

339  329 

Adone  v.    Seeligeon,   54  Texas, 

593  491 

^^tna  Ins.  Co   v.  Wheeler  et  al, 

49  N.  Y.  616  337,  350 

Ao-new  V.  The  Contra  Costa,  27 

"Cal.  425  217 

Alabama  Gt.  South.  R.  R.  Co. 
V.  Little,  71  Ala.  611  105 


Alabama, 'etc.,    R.    R.    Co.    v. 
Thomas'  Sons,  83  Ala.  343 

105, 
Alden   v.   Pearson,   3   Gray    (69 

Mass.),  342 
Alderman  v.  Eastern  R.  R.  Co., 
115  Mass.  233  480,  485, 

Aldrido-e   v.  Great  Western  R. 

Co.,"l5  C.  B.  N.  S.  582 
Alexander  v.  Green,  7  Hdl  (N. 

Y.),  533 
Allen    V.    Chisholm,    38    Upper 
Canada  Q.B.  237 
V.  Coltart,  L.  R.  IIQ.B. 

D.  782 
V.  Michigan  Cent.  R.  Co., 

79  Me.  327 
V.  Sewall,  2  Wend.  (N. 
Y.)  327  9,  39, 

Allen  V.  Williams,  12  Pick.  297 

479,491,  496,510,516,  518, 
Alsageru.  Dock  Co.,  14  M.  &  W. 

798 
Alston  V.  Herring,  11  Exch.  822 

243,  244, 
Amer.  Ex.  Co.  v.  Greenhalgh,  80 
111.  68 
V.    Haggard,     37 

111.  465 
V.  Lesem,   39  111. 

312  173- 

V.  Perkins,  42  111 

458  21 

V.   Sands,  55  Pa. 
St.  140 

102,  133, 
V.  2d  National 
Bank  of  Titus- 
ville,  19  Smith, 
69  Pa.  394  133, 
V.  Smith,  33  O. 
St.  511  200, 

457 


329 
227 
528 
339 
261 
375 
355 
533 
178 
521 
359 
245 
382 
8 
382 
,  38 

144 

337 

289 


TABLE   OF   CASES. 


Amer.  Ex.  Co.  v.  Wettstein,  28 

111.  App.  96  382 

American  Ins.  Co.  v.   Bryan,  1 
Hill  (N.  Y.),   25;   S.  C.  26 
Wend.  (N.  Y.)  563      206,211,320 
American  Ins.  Co.  v.  Dunham, 

12  Wend.  (N.  Y.)  463  206 

Am.    Merc.  Union  Ex.    Co.    v. 

Phillips,  29  Mich.  515  254 

Am.   Merc.   Union  Ex.   Co.    v. 

Schier,  55  111.  140         150,  153,  382 
Am.  Merc.    Union  Ex.    Co.   v. 

Wolf,  79  111.  430  382 

Am.  Trans.  Co.  v.  Moore,  5  Mich. 
368  (S.  C.  Mich.);  7  Am. 
Law  Keg.  O.  S.  352 

155,  161,  165,  232 
Ames  V.  St.  P.  R.    R.  Co.,   12 

Minn.  412  162 

Amies  r.  Stevens,  1  Str.  128     190,  295 
Anchor  Line  v.  Dater,  68  111.  369 

113,  153 
V.  Knowles,  66  111. 

150  150,  153 

Anderson  v.  Clark,  ?  Ring.  20         492 
Andrews  v.  Roach,  3  Ala.  590  79 

Anonymous  v.  Jackson,  Peake's 

Add.  Cas.  183  100 

Arbuckle  v.  Thempen,  1  Wright 
(Pa.),  170  (see  case  475,  476) 

411,  471,  476 
Arcangelo  v.  Thompson,  2  Camp. 

620  206 

Archer  v.  The  Adriatic,  9  Cent. 

L.  Jour.  201  49 

Ardan    Steamship  Co.    v.    The- 

band,  35  Fed.  Rep.  620  73 

Arend  v.  Liverpool,  etc.,  Stm. 
Co.,  64  Barbour  (NY.),  118; 
S.  C.  6  Lans.  (N.  Y.)  457 

49,  252 
Armentrout  v.  St.  L.,  K.  C.  & 
N.  R.  Co.,  1  Mo.  App.  158 

235,  472 
Armour  v.  Michigan  Cent.  R.  R. 

Co.,  65  N.  Y.  Ill  168,  434 

Armstrong  v.  G.  &  T.  Rlw.  Co., 

2P.  &B.  445  336 

Arnold  v.  Jones,  26  Tex.  335     64,  65 

V.  Potter,  22  Iowa,  194         92 

V.  Prout,  51  N.  H.  587       471 

Arrayo  v.  Currell,  1  La.  Rep.  528       98 

Arthur  v.  St.  Paul,  etc.,  R.  Co., 

38  Minn.  95  400 

Ashmore  v.  Penn.  Stm.  S.  Trans. 
Co.,  4  Dutcher  (N.  Y.),  180 

71,  130 

458 


A.  &  T.  R.  R.  Co.  V.  Kidd,  29 

Ala.  221  169 

Atchison,    etc.,     R.     R.    Co.    v. 
Washburn,  5  Neb.  117 

102,  126,  127 
Atkinson  v.  Ritchie,  10  East,  530  306 
Atlantic    Insur.   Co.   v.    Storrow, 

5  Paige  (N.  Y.),  285  320 

Atwell  V.  Miller,  11  Md.  357  68 

Atwood  r.  Reliance  Transporta- 
tion Co.,  9  Watts  (Pa.),  87 

133,  268 
Audenreid  v.  Randall,  3  Clifford, 

99  420,  480,  533 

Angle  V.  Miss.  &  Mo.  R.  R.  Co., 

9  Iowa,  487  329 

Aus    V.    Kempf,     10  Benedict's 

Repts.  (U.  S.  D.  C.)  231  45 

Austin  V.  Drew,  4  Camp.  360  225 

0.  Manchester,  etc.,  R. 
R.  Co.,  10  C.  B.  454; 
S.  C.  16  Q.  B.  600  100 

V.  Manchester,  etc..  Rail- 
way Co.,  21  L.J.  C.P. 
179;  S.  C.  10  C.  B. 
453;  16  Jur.  763;  7 
Ry.  Cas.  300  264 

17.  Talk,  20Tef.  164      49,  136 
Australasia  Ins.  Co.  v,  Jackson, 
3  Esp.  Mar.  Law  Ca.  (N.  S.) 
26  206 

Australasia,    etc.,   Nav.    Co.    v. 

JMorse,  L.  R.  4  P.  C.  222  288 

Ayers  v.    Western    R.   Co.,    14 
Blatchford  (U.  S.  C.  C),  9 

150,  157 
Aymar  v.  Astor,  6  Cow.  266 

271,  272,  298 


B. 


Babcock  v.  L.  S.  &  M.  S.  R.  R. 
Co.,  49  N.  Y.  491 

75,   332,   343,    350 
V.  May,  4  Ohio,  346  64 

Backhouse  v.  Sneed,  Murph.  (N. 

C.)  173  192 

Bags  of  Linseed,   1  Black,  108, 

112  73,  359 

Bailey  r.   Hudson  River  R.  R. 

Co.,  49  N.  Y.  70  474,  502 

Baker  u.  Bruison,  9  Rich.  (S.  C.) 

201  134,  252 

V.  Michigan,   etc.,   R.  R. 

Co.,  42  111.  73  113 

V.  Mo.  Pac.  Ry.  Co.,  19 
Mo.  App.  321  328 


TABLE   OF   CASES. 


Baker  v.  Steamboat  Milwaukee, 

14  Iowa,  214  164 

Baldwin  v.  Collins,  9  Robinson, 

468  118 

V.  L.  &  G.  W.   S.  S. 

Co.,  74  N.  Y.  125  35 

Balfour   v.    Wilkins,     5    Sawyer 

(C.  C),  429  69 

Ballentine  v.  Northern  Missouri 

R.  R.  Co.,  40  Mo.  491  190 

B.  &  L.  H.  Ry.  Co.   v.  Gordon, 

16  U.  C.  (Q.  B.)  283  362 

B.  &  O.  R.  R.  Co.  V.  Brady,  32 

Md.  333  101,  120,  155 

B.  &  O.  R.  R.  Co.  V.  Green,  25 

Md.  72  323-328 

B.  &  O.  R.  R.  Co.  V.  McWhin- 

nev,  36  Ind.  436  414 

Baltimore,    etc.,   R.   R.    Co.    v. 

Morehead,  5  W.  Va.  293  194 

B.  &  O.  R.  R.  Co.  V.  Rathbone, 

1  W.  Va.  87  139,  260 

B.  &  O.   R.   R.    Co.    V.    Schu- 

macker,  29  Md.  168  328 

B.  &  O.  R.  R.  V.  Skeels,  3  W. 

Va.  556  1^^ 

Baltimore,    etc.,   R.   R.  Co.    v. 
Wilkins,  44  Md.  11 

15,  167,  180,  345,  432,  454 
Baltimore,  etc.,  Stm.  Boat  Co.  u. 
Brown,    4    P.    F.   Smith,   54 
Venna.   77 

70,  170,  323,  325,  331,  345 
Bancroft  v.  M.  D.    T.  Co.,   47 

Iowa,  262  350 

V.  Peters,  4  Mich.  619 

24,  82 
Bank  of  Commerce  v.  Bissell,  72 

N.  Y.  615  398,  414 

Bank  of  Green  Bay  v.  Dearborn, 
115  Mass.  219 

496,  504,  505,  511 

Bank  of  Kentucky  v.  Adams  Ex. 

Co.,  1  Flippin,   242,  Supreme 

Court,  93  U.  S.  174;  3  Otto, 

174  103,  229,  324 

Bank  of  Rochester  v.  Jones,  4 

N.  Y.  497  479,  491,  496,  497, 

516,  518,  521,  522 
Bankard  v.  B.  &  O.  R.  Co.,  34 

Md.  197  120 

Barber  v.  Brace,  3  Conn.  9 

13,  84,  239,  250,  253 
V.  Meyerstein,   L.  R.    4 

H.  L.   317  418 

V.  Taylor,    5   M.   &   W. 

527  422 


328 
294 
180 

369 


SECTION 

Barclay  v.  Clyde,    2    E.    &  D. 

Smith  (C.  P.  N.  Y.) 

95 

V.  Circulla,  3  Doug.  389 

Bark  Edwin,  1  Sprague,  477 

Barker  v.  Havens,   17  Johnson 

(N.  Y.),  234 
Barnard  v.  Campbell,  58  N.  Y. 

73;   55N.  Y.  456         535,  540,  542 
Barrett  v.  Rogers,  7  Mass.  297 

47,  48 
V.  I.    St.   Louis  R.    R. 
Co.,  9  Mo.  App.  226 

328,  329 
Barry  V.  Louisiana  Ins.  Co.,   11 

Mait.  La.   630  210 

Barter  v.  Wheeler,  49  N.  H.  9  ; 
10  Am.  Law  Reg.  N.  S.  194 

23,  94,  127,  230,  345 
Barton  r.  WoUeford,  Comb.  56 

(3  Jac.  II.)  269,  271,  292 

Bass  V.  Glover,  63  Ga.  745  397 

Batavia  Bank  v.  N.  Y.,  etc.,  R. 
Co.,  106  N.  Y.  195 

168,  428,434,  515,  516 
[Bates  V.  Tood,  1  Moody  &  Robin- 
I      son,  106  (Eng.  N.  P.) 
Baxendale  v   Great  Eastern  Ry. 
Co.,  38  L.J.  Q.B.  137  ;  4  L. 
R.  Q.  B.  244;  17  W.  R.412; 
10  B.  &  S.  212 
Baxter  v.  Leland,  1  Abbot  Adm. 
Rep.  (N.  J.  Dist.  Ct.)  348 ;  1 
Blatchf.  526  55,  243,  273,  322 

Bazin  v.  Steamship  Co.,  3  Wall. 

Jr.,  229  198,  275 

Bean'u.  Green,  12  Me.  422 

119,  160 
Beale  v.  Pettit,   1  Wash.  C.  C. 

241 
Beard  v.  111.  Cent.  R.  Co.,  44  N. 
W.  (Iowa)  800 
V.  Steele,  34  U.  C.  Q.  B. 

43  180,  409 

Bearse  v.  Ropes,  1  Sprague,  331 

243,  267,  269 
Beck  V.  Evans,  16  East,  244  100 

1  Becker  v.  Hallgarten,  86  N.  Y. 

167        496,  501,  533,  538,  540,  541 

542 
Beckman    v.    Shouse,  5  Rawle, 

179  133 

Reel  V.  Mitchell,  48  Ga.  533  49 

Belger  v.  Dinsmore,  51    N.  Y. 

166  8,  39,  129,  150 

Bell  V.  Read,  4  Binn.  Pa.  127 

188,  194 

459 


26 


100 


419 


241 


TABLE   OF   CASES. 


SECTION 

Bell  V.  AVood,  1  Dana  (Ky.),  146 

176,  183 
Benjamin  v.  Levy,  39  Minn.  11  461 
Bennett  v.    Filyaw,    1  Fla.   403 

111,  329 
Berg  V.  A.  T.  &  St.  F.  R.  R. 

Co.,  30  Kas.  561  340 

Berkley  v.  Watling,  7  Adolpli  & 

Ellis,  29  15,  25,  428,  429 

Berrv  et  al.  v.  Cooper  et  al.,  28 

Ga.  543  160 

Betts  V.  Farmers'   Loan  &  Trust 

Co.,  21  Wis.  80  217,  140 

Bever  w.Tomlinson,  Easter  Term, 
36  Geo.  IIL,  Abbott  on  Ship- 
ping, p.  290  (10th  ed.)  p.  iv., 
ch.  vi.  184,  274 

Bickett  V.  Willan,  2  B.  &  A.  356 
Bickford  v.  Herr,  18  Lower  Can- 
ada Jurist  (Q.  B.),  169  367 
Biddle  V.  Bond,  6  Best  &  S.  225     468 
Bingham  v.  Rogers,  6  Watts  & 

Sergeant,  495  133 

Bird  V.  Astcock,  2  Bulst.  280 

190,  247 
V.  Cromwell,  1  Mo.  58     278,  286 
Birkett  v.  Willan,  2  B.  &  A.  356     194 
Bishop  V.  Empire  Trans.  Co.,  48 
How.  Pr.  119;  33  N. 
Y.  Supr.  Ct.   99 

63,  150,  362,  397 
Bissell  V.   Campbell,  54  N.    Y. 

353  31,  82 

V.  Michigan  R.   R.  Co., 

22  N.  Y.  258  323 

V.  Price,"     16     111.     408 

14,  48,  343 
V.  Steel,  67  Penn.  443        502 
Black    V.   Goodrich  Trans.   Co., 

55  Wis.  319  140 

V.  Rose,  2  Moore  P.  C. 

(N.  S.)  277  378 

Blackburne  on  Sales,  297  424 

Blackstock  v.  New  York  &  Erie 

R.  R.  Co.,  20  N.  Y.  48  312 

Blade  v^  C.  St.  P.  &  F.  du  L.  R. 

R.  Co.,  10  Wis.  4  51 

Blajig   V.    Phoenix    Ins.    Co.,    3 

Wash.  C.  C.  5  418,  419 

Blaikie  v.  Steinbridge,   6  C  B. 

N.  S.  894  243 

Blaine  v.  Mailer,  2  Juta's  Rep. 

Cape  Good  Hope  E.   D.    133       45 
Blair  V.  Erie  R.  R.  Co.,  66  N. Y. 

313  129 

Blanchard  v.  Page,  8  Gray,  281 

2.5,  368 

460 


BECTIOK 

Blanchet  v.  Powers  Colliery  Co., 

9  L.  R.  Exch.    74  ;    43  L.  J. 

Exch.  50 ;  22  W.  R.  490 ;  30 

L.  T.  N.  S.  28  27 

Bland  v.  Adams  Express  Co.,  1 

Duv.  (Kv.)  232  293 

Blight  V.  Page,  3  B.  &  P.  295 

306,  308 
Bliven  i'.  Hudson,  etc.,   R.  R. 
Co.,  36  N.  Y.  403  ;  35  Barb. 
188  300,  301 

Block   V.    Erie   &   North  Shore 
Despatch  Fast  Freight   Line, 
21  Am.  &  Eng.  R.  R.  Cas.  1       345 
Blocker  v.  Whittenburg,  12  La. 

Ann.  Rep.  410  285 

Blod-i-ett  V.  Abbott,  72  Wis.  516  ; 
S.  C.  40  N.   W.   Rep.  491 

69,  196 
Blossom  V.  Champion,  37  Barb. 
554;   28  ib.  217 

461,  463,  465,  538 
V.  Dbdd,  43  N.  Y.  264 

129,  151 
V.  Griffin,  13N.Y.  569       79 
Blower   v.   Great   Western   R'y 
Co.,  7  L.  R.  C.  P.  655;  S.  C. 
20  W.  R.  776  218 

Blum  V.  The  Caddo,  1  Woods, 

64  ^        472 

Blumenthal  v.  Brainerd,  38  Vt. 

402  137 

Boatman's  Saving  Bank  r.  West, 

etc.,  R.  Co.,  81  Ga.  221      414,  516 
Bogirs    V.    Martin,    13    B.   Mon. 

(Sy.)  239  375 

Bohannon  v.  Hammond,  42  Cal. 

227  192 

Bonanno   v.  Boskenna  Bov,   36 

Fed.  Rep.  697  '  196 

Bond  V.  Frost,  6  La.  Ann.  Rep. 

801  49 

V.  The  Cora,  2  Pet.  Adm. 

373  197 

Boon  V.  St' mb't  Belfast,  40  Ala. 

184  81,  271,  294 

Boorman    v.  Am.    Ex.    Co.,   21 

Wis.  152  144,  151 

Boscowitz  V.  Adams  Ex.  Co.,  5 

Cent.  L.  Jour.  58         37 
V.  Adams    Ex.    Co., 
93  111.  523 

113,  144,  153,  158 
V.  Adams  Exp.  Co., 
45  Georgia,  305 
Boston,  etc.,  R.  R.  Co.  v.  Shan- 
ley,  107  Mass.  568  246 


TABLE   OF   CASES. 


345 


208 


344 


269 
281 


SECTION 

Bostwick  V.  Baltimore,  etc.,    R. 
R.   Co.,  45  N.  Y. 
712,    reversing    the 
judo-ment  in  56  Barb. 
137         67,  150,  151,  197, 
269 
V.  Champion,  11  Wend. 
(N.  Y.)  571 
Bouttlower    v.    Wihner,    2    Sel- 
■wyn's  Nisi  Prius,  96  (21  Geo. 

II-) 
Bowman  v.  Kennedy  (S.   C.  of 
Pa.),    1    Am.    Law 
Reg.  (0.  S.)  119 
V.  Teale,  23  Wend.  N.     ^ 
Y.  306  100,  194 

Boyce  v.  Anderson,  2  Pet.  150        201 
V.  Welch,     5    La.    Ann. 
Rep.  623 
Boyd  V.  Dii  Bdis,  3  Camp.  133 
Boyle  I'.  INIcLaughlin,  4  H.  &  J- 

(Md.)  291  191  >  19'- 

Bradley  v.  Dunipace,  1  H.  &  C. 
521;  7  H.  &N.200; 
32  L.  J.  Exch.  22 

259,  400,  409 
Fertilizer    Co.    v.    The 
"  Edwin     L.    Morri- 
son,"  40   Fed.   Rep. 
501  269 

Bradstreet  v.  Heron,  2  Blatchf. 
116,  209;   Abbott's  Ad.  209 

14,  45,  47,  398 
Brand  v.  Focht,   1 

185 
Brandt  v.  Bowlby 

932 
Brass  v.  Maitland,   6  El 

470 
Brauer  v.  Barque  "Almoner," 

18  La.  Ann.  Rep.  266 
Breed  v.  Mitchell,  48  Ga.  533 
Brehme   v.  Adams  Ex.  Co.,   25 

Md.  328  120,  142,  144,  150 

Bridden  v.  Great   Northern    R. 
W.  Co.,  28  L.  J.  Exch.  51 

190,  195 
Bri"    INIay   Queen,    Newberry's 

Adm.,  U.  S.  D.  C.  464 
Brit^gs  V.  B.  &  L.  R.  R.  Co.,  6 
Allen  (88  Mass.),  246 
V.  Vanderbilt,    19    Barb. 
N.  Y.  222 
Brintnall  v.  S.  &  W.  R.  R.  Co., 

32  Vt.  665  328,  333,  346 

Bristol  &  Exeter  Ry.  v.  Collins, 
7  House  of  Lords,  197  349 


352 


273 
111 


194 


Abb.    App. 

420 
&  Ad. 

480,  499 
&  Bl. 

243 

251 

49 


2  B. 


59 
360 


345 


SECTIOIf 

Brittan  v.  Barnaby,  21  Howard, 

527  (U.  S.  C.  C.) 
Britton  v.  Ay  mar,  23  La.  Ann. 

Rep.  63  295 

12,  157,  378,  412 
Broadwell  v.  Butler,  6  McLean, 
296 
V.    Butler,   1    Newb. 
171;   S.  C.  6  Mc- 
Lean, 296 
Brock  V.  Gale,  14  Fla.  523 
Brodenham  v.  Bennet,   4  Price, 

31 

Brooke  r.  N.  Y.,  L.  E.  &  W.  R. 

R.  Co.,    16  W.  N.  C. 

514;    S.   C.    108    Pa. 

St.  529,  530  99,  168 

V.  Pickwick,  4  Bing.  218 

35,  194,  434 
Brooks  V.  Am.  Ex.  Co.,  14  Hun, 

N.  Y.  364  382 

Brousseau  v.    Ship  Hudson,    11 
La.  Ann.  Rep.  427 

188,  192,  201,  223,  224,  243 
Brown  v.  Adams  Ex.  Co.,  15  W. 

Va.  812  .    102,  139 

V.  Camden  &  Atlantic  R. 
R.  Co.,  83  Penna.  St. 

V.  Clayton,  12  Ga.  564 
V.  Delano,  12  Mass.  373 

297,  411 
V.  Eastern  R.  R.  Co.,  11 

Cushing,  97 
V.  Lamont,     30      Upper 

Canada  Q.  B.  392 
V.  Mott,  22  Ohio  St.  149 
V.  Peabodv,  13  N.  Y.  121 

465, 467 
V.  Powell  Coal  Co.,  L.R., 

IOC.  P.  362       428,429,430 
V.  Railway,  54  N.  H.  535    388 
V.  Spoffkrd,  95  U.  S.  474 
V.  Union  Ins.  Co.,  5  Day 
Ct.  1 
Bruce  v.  Andrews,  36  Mo.  593 
V.  Nicholopulo,   24  L.  J. 

Ex.  321 
t;.  Wait,  sMees.  &W.  15     491 
Brunswick  v.  U.  S.  Express  Co., 

46  Iowa,  677  414 

Brush  V.  S.  A.  &  D.  R.  Co.,  43 

Iowa,  554  115 

Bryan  v.   M.  P.   R.  R.  Co.,   11 

Bush  (Ky.),  597  325,  327 

Bryans  v.  Nix,  4  M.  &  W.  775, 

791  491,  492 

461 


89 
286 


121 

190 
336 


70 


206 
479 


308 


TABLE   OF   CASES. 


SECTION 

Bryant  ik  Southwestern   E.   R. 

Co.,  68  Ga.  805  343 

Bryden  v.  Niebuhr,   1   C.  &  E. 

241  74 

Buckland  v.  Adams  Ex.  Co.,  97 
Mass.  124  121,  151,  152, 

161,  333 
Buffett  V.  T.  &  B.  R.  R.  Co.,  40 

N.  Y.  168  323 

Buffington  v.  Curtis,    15    Mass. 

528  496 

Bulkley    v.    Naumkeag    Steam 
Cotton  Co.,  24  How.  386 

192,  203,   223,  224,  272,  411 
Buller  V.  Fisher,  3  Esp.  67  ;  Ab- 
bott  on    Shipping,    p. 
289  (10th  Am.  ed.) 

203,  213,  276 
V.    Fisher,    Peake's    Ad. 

Cas.  K.  B.  183        192,  203 
Bullock  V.  Toay  Anny,   24  Cal. 

W.  R.  C.  R.  74  216,  317 

Burghall  v.  Howard,   1  H.  Bl. 

366  532 

Burroughs  v.  Grand  Trunk  R. 
R.  Co.,  32  Am.  & 
Eng.  R.  Cas.  467  350 
V.  Grand  Trunk  R. 
Co.,  34  N-.  W. 
Rep.  875  235 

V.  N.  &  W.    R.    R. 
Co.,  100  Mass.  26 

1 75    328 
Burtis  V.  B.  &  St.  L.  R.  R.  Co.,  ' 

24  N.  Y.  269  323 

Burton  v.  Wilkinson,  18  Vt.  186     300 
Bush  V.  St.  L.  K.  C.  &  N.  Ry. 
•    Co.,  3  Mo.  App.  62  414 

Bussey  v.  M.  &  L.  R.  R.  Co.,  4 

McCrary  (D.  C),  405  325 

Butler  V.  Smith,  6  George,  457       476 
Byrne  v.  Weeks,   4  Abb.   Dec. 

(N.  Y.)  657  375 


C. 


Cafiero  v.  Welsh,  8  Phila.  Rep. 

130  13,  14,  19 

Cain  V.  Garfield,  1  Lowell,  483  400 
Caldwell  v.  Ball,  1  Tenn.  205  493 

Calhoun  v.  Fitzsimmons,  1  Binn. 

(Pa.)  293,  321  206 

C.  &  A.  R.  R.  Co.  V.  Baldauf, 

16  Pa.  St.  67  35,  37,  133 

C.  &  A.  R.  R.  Co.  V.  Bausch,  6 

Cent.  Rep.  121  64 

462 


SECTION 

C.  &  A.  R.  R.  Co.  V.  Benjamin, 

63  111.  283  47,  49 

C.  &  A.  R.  R.  Co.  V.  Forsyth, 

61  Pa.  St.   81  328,  350 

C.  &  A.  R.  R.  Co.  V.  Thompson, 

19  111.  578  38,  39 

C.  &  A.  R.  &  T.  Co.  V.  Burke, 

13  W^end.  (N.  Y.)  611  9 

Camp  V.   H.    N.    Y.    Stm.    Co., 
43  Conn.  333  ;  also  reported  3 
Law  &  Eq.  Rep.  515  100,  109 

Campbell  v.  Allford,  57  Texas, 

159  496 

V.  Morse,  Harp.  L.  R. 

468  194 

C.  &  T.  R.  R.  Co.  V.  Kidd,  29 

Ala   221  69 

Candee  v.  P.  R.  R.  Co.,  21  Wis. 

582  327 

Canfield  v.  Northern  R.  R.  Co., 
18  Barb.  (N.Y.)  586 

343,  364,  370 
Cannan  v.  Meaburn,  1  Bing.  243  276 
Canning  v.  Brown,  9  East,  509 

491,  537 
Cantu  V.  Bennet,  39  Texas,  303 

93,  136 
Cape  Hart  v.  S.  &  R.  R.  Co.,  81 

N.  C.  438  131,  390 

Carey  v.  Atkins,  6  Ben.  562  252 

Carr  v.  Austin,  etc.,  R.  Co.,  4 

Wood,  327  357 

V.    Lancashire,    etc.,    Ry. 
Co.,  7  Exch.  712,  707 

100,  217 
V.  Steamboat  Michigan,  27 
Mo.  196  352 

Carson  V,  Harris,  4  Greene  (Iowa), 

516  45,  49,  343 

Carters.  Peck,  4  Sneed  (Tenn.), 

203  329 

Case  V.  Hartford  Ins.  Co.,  13  111. 

676  225 

Cassilay  v.  Young,  4  B.  Mon. 

(Ky.)  265  351 

Caulkins  v.  Hellman,  47  N.  Y. 

449  472 

Cayuga  Bank  v.  Daniels,  47  N. 

Y.  631  486,  496,  502,  519,  521 

Center  v.  Torry,  8  Martin's  La. 

Rep.  206  64 

Central  Line  of  Boats  v.  Lowe, 

50  Ga.  509  192,  201,  202,  203 

Cent.  R.  Co.  v.  Avant,  80  Ga. 

195  339 

Central  R.  R.  &  B.  Co.  v.  An- 
derson, 58  Ga.  393  28,  170 


TABLE   or   CASES. 


SECTION 

Central   R.    &   Banking   Co.  v. 

Smith  &  Chastain,  85  Ala.  47      105 
Cent.  Trust  Co.  v.  Wabash,  etc., 

R.  R.  Co.,  .39  Fed.  Rep.  417        40 
Certain   Logs   of    Mahogany,    2 
Sumner  (U.  S.  C.  C),  589 

73,  378 
Chadwick  i'.  Denniston,  41  Fed. 

Rep.  58  204 

Chalk  V.  Charlotte,  etc.,  R.  R. 

Co.,  85  N.  C.  423  225,  226 

Champion  v.  Bostwick,  18  Wend. 

(N.Y.)175  345 

Chandler  v.  Fulton,  10  Texas,  2 

533,  544 
V.   Sprague,  46   Mass. 
306  480 

Chapin  v.  Chicago,  etc.,  Ry.  Co. 

(Iowa),  44  N.  W.  Rep.  820         188 
Chappel  V.  Comfort,  31  L.  J.  0. 
P.  58 ;  8  Can.  Law  Jour.  (O.  S.) 
138  250,  356 

Chartered  Bank  v.   Henderson, 

L.  R.  5  P.  C.  501  543 

Chartier  v.  G.  T.  Ry.  Co.,   17 

Low.  Can.  Jur.  26  340 

Chase  v.  Westmore,  5  M.  &  S. 

180  359 

Chester  Nat.  Bank  v.  Atlantic  & 

R.  Co.,  25  S.  C.  216  414,  516 

Che  valuer's  Adm'r  v.  Patton,  10 

Texas,  344  86 

Chevallier  v.  Straham,  2  Texas, 

115  188,  192,  223,  224 

C.  H.  &  D.  D.  &  M.  R.  R.  Co. 
V.  Pontius,  19  Ohio  St.  221 

150,  326,  339 
Chicago  &  Aurora  R.  R.  Co.  v. 

Thompson,  19  111.  578  21 

Chicago,  St.  L.  &  N.  O.  R.  R. 

Co.  V.  Abels,  60  Miss.  1017  124 

Chicago,  etc.,  R.  R.  Co.  v.  Mont- 
fort,  60  111.  175  113,153 
Chicago,  etc.,  R.  R.  Co.  v.  Moss, 

60  Miss.  1003  124,  227,  228 

Chicago,  etc.,  R.  R.  Co.  v.  Peo- 
ple, 56  111.  365  329 
Chicago,  etc.,  R.  R.  Co.  v.  Shea, 

66  111.  471  20,  21 

Chickering  v.  Fowler,  21  Mass. 

(4  Pick.)  371  400 

Ching  Hong  &  Co.  v.  Seng  Moh 
&  Co.,  3  L.  R.  4. Col.  Ser. 
736  .  223 

Chippendale  v.  Lancashire,  etc., 
R.  R.  Co.,  7  Railway  Canal 
Cas.  824  lot) 


SECTION 

Chippendale  v.  Yorkshire,  etc., 
Ry.  Co.,  15  Jur.  1106;  S.  C. 
21  L.  J.  Q.  B.  22;  7  Ry.  Cas. 
824  217,  264 

Choate  v.   Crowinshield   3   Clif- 
ford, C.  C.  Rep.  184  47,  49 
Chouteaux  v.  Leech,  18  Pa.  St. 

224  133,  159,  200, 

278,  285,  286 
V.    St.    Anthony,    11 

Mo.  226  178 

Chopin   V.    Clark,  31   La.  Ann. 

Rep.  846  480,  519 

Christenson  v.  Am.  Ex.  Co.  15 

Minn.  270  123,129,150,338 

Christie    v.    The    Craigton,    41 

Fed.  Rep.  62  269 

City  Bank  v.  Rome  &  R.  R.  Co., 

44  N.  Y.  136  496 

Citizens'  Insurance  Co.  v.  The 
Kountz  Line,  4  Wood's  Rep. 
268  •  345 

City    Ins.    Co.    v.    Corlies,    21 

Wend.  367  225 

Clark  V.  Barnwell,  12    Howard, 

272  47,  55,  243, 

269,  322 
V.  Faxton,  21  Wend.  153  129 
V.  Pacific  R.  R.   Co.,  39 

Mo.  184  295,  296 

Clarke  V.  Gray,  6  East,  564  100 

V.  Great  Western  Ry. 
Co.,  8  U.  C.  C.  P. 
191  491 

V.  R.  &  S.  R.  R.  Co.,  14 

N.  Y.  570  217 

V.  Rochester  Ry.   Co.,   4 

Kern.  570  217 

Clay  V.  Willan,  1  H.  Bl.  298  100 

Close  V.  Beatty,  28  U.  C.  C.  P. 

470  400,  405 

Clyde    V.     Hubbard,     7    Norris 

(Pa.),  358  325,  327,  328 

Coal  and  Oil  Co.  v.  H.  &  St.  J. 

R.  R.  Co.,  35  Mo.  84  327 

Coates  u.  U.  S.  Exp.  Co.,  45  Mo. 

238  328,  329 

Cobb  I'.  Blanchard,  11  Allen,  93 

Mass.  409  73,  83 

Cochran  v.  Dinsmore,  49  N.  Y. 

249  225,  228 

Coffin  V.  Newburyport  Ins.  Co., 

9  Mass.  436  197 

CofTfTS  V.   Bernard,  2  Ld.  Ray- 
mond, 909  189,294 
Cohen  v.  Southeastern  Ry.  Co., 

L.  R.  2  Ex.  D.  253         2,  261,  265 

463 


TABLE   OF    CASES. 


SECTION 

Cohen  v.  Southern  Express  Co., 

45  Ga.  148  329 

Colburn  v.  Arbuckle  &  Thomp- 
son, 1  Wrijrht,  170  476 
Cole  V.  Goodwin,  19  Wend.  (N. 

Y.)  251  20,  37,  129 

Coleman  v.  Riches,  16  C.  B.  103 
29  Eng.  L.  &  Eq.  323 

167,  180,  428,  429 
Colgate y.  Pennsylvania  Co.,  102 

N.  Y.  120  449 

CoUender  v.  Dinsmore,  55  N.  Y. 

200  64,  69,  382 

Collier  v.  Swinney,  16  Mo.  484       192 
V.  Valentine,  11  Mo.  299 

269,  275 
Collins  V.  Burns,  4  J.  &  Sp.  518     414 
V.  B.  &  E.   R.  Co.,   11 
Ex.  790;   1  H.  &N. 
517;    7    H.    of   L. 
Cases,  194  325 

V.  Union  Trans.  Co.,  10 

Watts  (Pa.),  384    369,370 
Colt  V.  McNechin,  6  Johns.  (N. 

Y.)  160  190 

Colton  V.  Cleveland,  etc.,  R.  R. 

Co.,  67  Pa.  St.  211      133,  223,  228 
Commercial  Bank  v.  PfeiH'cr,  22 

Hun,  327  510 

Compart  v.  Stmr.  Prior,  2  Fed. 

Rep.  819  _  60 

Conard  v.   Atlantic  Ins.   Co.,   1 

Pet.  445         479,  493,  494,  516,  533 
Condict  V.  Grand  Trunk   R.   R. 
Co.,  54  N  .  Y.  500  ;  4  Lansing, 
N.  Y.  106  226,  325,  326,  335 

Congar  v.  Chicago  &  Galena  R. 

Co.,  17  AVis.  477  329,  471 

Conger  v.  Hudson  River  R.   R. 

Co.,  6Duer(N.  Y.),375      217,220 
Conkey  v.  Milwaukee  &  S.  Paul 

Ry    Co.,  31  Wise.  619  343 

Consequa  v.  Willi'ngs,  Peters,  C. 

C.  225  99 

Couturier  v.  Hastie,  5  H.  L.  C. 

673  418 

Con  vers  v.   Brainard,    27   Conn. 

607  212,  215 

Converse  r.  N.  &  N.  Y.  Co.,  33 

Conn,    166 ;    6  Am. 

Law.   Reg.,    N.    S. 

214(8.  C.  of  Conn.) 

323,  328,  345 
Cook   V.  Commercial    Ins.     Co., 

llJohns.  (N.  Y.)  40     208 
V.  Gourdin,  2  Nott.  &  M. 

(S.  C.)  19  194 

464 


SECTION 

Cooper  V.  Berrv,  21  Ga.  526        • 

38,  69,  80 
Coosa   River  Stm.   Co.    v.    Bar- 
clay, 30  Ala.  120  2 
Cope  V.  Cordova,  1  Rawle  (Pa.), 

202,  211  1,  398,  400 

Coke  V.  Doherty,  4  Jurist,  N.  S. 

699  215 

Cornwall  v.  Wilson,  1  Ves.  509       521 
Cory   V.   Robinson,  Lowdnes  on 

General  Average,  p.  42  239 

Coulthurst  V.  Sweet,  1  L.  R.  C. 

P.  649  ^     49,  373 

Courtois  V.  Carpentier,  1  Wash. 

C.  C.  376  99 

Covas  V.  Bingham,  2  C.  L.  R. 
212;  2  El.  &B1.  836;  18  Jur. 
596;  23  L.  J.  Q.  B.  26  31 

Covell  r.   Hitchcock,  23  Wend. 

611  537 

Coventry  v.  Gladstone,  L.  R.  4 
Eq.  493;  L.  R.  6 
Eq.  44  523,  544 

V.  G.   E.   R.   Co.,   11 

Q.  B.  D.  776  168 

Covin  V.  Hill,  4  Denio  (X.  Y.), 

323  2 

Covington  v.  Willan,  Gow.  115       100 

Cowley  V.  Davidson,  13  Minn.  92     273 

Cox  v.  Foscue,  37  Ala.  505  351 

V.  Peterson,  30  Ala.  608 

14,  65,  192,  223,  272,  273 
V.  Star  Nav.  Co.  (INIit.  Mar. 

Reg.,  2  June)  203 

Coxe     V.     Heisley,      7       Harris 

(Penna.),  243  38,  40 

Coxon  V.  G.  W.  R.  Co.,  5  H.  & 

N.  274  »  325 

Cragin  v.  N.  Y.,  etc.,  R.  R.  Co., 

51  N.  Y.  61  129,  217,  240,  254 

CraiT  V.  Childress,  Peck,  270     135,  200 
Cramer  v.  A.  M.  U.  E.  Co.  &  M. 

D.  Co.,  56  Mo.  524  328,  329 

Cranwell  v.  The  Faimie  Fosdick, 

15  La.  Ann.  Rep.  436  243 

Craven  v.  Ryder,  6  Taunt.  433 

462,  465 
Crawford    v.    S.    R.    Assn.,    51 

Miss.  222  327,  328 

Creery  v.  Holly,  14  Wend.  (N. 

Y.)  26  '  3,  64,  68,  85 

Crenshawe   v.   Pearce,   3  7    Fed. 

Rep.  432  16 

Crosby  v.  Fitch,  12  Conn.  410 

185,  197 
V.  Grinnell,  9  N.  Y.  Lea. 
Obs.  281  "      269 


TABLE   OF   CASES. 


/-I  ^    ^v  SECTION 

Cross  V.   O'Donnell,   44   N.   Y. 

G61  4^2 

Crouch  V.  G.  W.  K.  Co.,  2  H    & 

N.  491  325 

Crousillat  v.  Ball,  4  Dall;  294 

205,  207,  209 
Crow  V.  Falk,  8  A.  &  E.  N.  S. 

..  1?^         .,  304 

Cullen  V.  Butler,  1   Stark.  138; 

S.  C.  5  M.  &  S.  461  274 

Currell  v.  Johnson,  12  La.  Rep. 

290      •  ^        45 

Cnrry  v.  Roulstone,  2  Overt.  Ill     533 
Cutts  V.  Brainerd,  42  Vt.  566 
^       ,  323,  325,  328 

Czech  V.  General  Steam  Navi-ra- 

tion  Co.,  L.J.  37  C.  P.  3  ; ''s. 

C.  L.  R.  3;   C.  P.  14  203,  253 

C.  &  C.  A.  R.  R.  Co.  V.  Marcus, 

38  111.  219  38 

C.  &  M.  W.  Ry.  Co.  V.  Mont- 
fort,  60  111.  175  309 
C.  &  N.  W.  R.  R.  Co.  V.  Ames, 

40  III.  249  409 

C.  &  N.  AV.  R.  R.  Co.  V.  N.  L. 

Packet  Co.,  70  111.  217  63,  333 

C.  &  S.  W.  R.  R.  Co.  V.  N.  W. 

U.  Packet  Co.,  38  Iowa,  377       358 


174 


410 


196 
228 


299 


D. 

D' Arc  V.  London,  etc.,  Rv.  Co., 

9  L.  R.  C.  P.  325 
I>a  Costa  V.  Edmunds,  4  Camn 
142  * 

Daggett  V.  Shaw,  3  Mo.  189 

215  269 
Bale  V.  Hall,  1  Wils.  R.  281  '  294! 
Darling  v.  Boston,  etc.,  R.  R.,  11  '' 

Allen  (Mass.),  295 
Dart  V.  Ensign,  4  7  N.  Y.  619 
Dauchy  v.  Silliman,  2  N.  Y.  S.  C. 

(Lansing)  361 
Davenport  Bank  v.  Homlver,  45 

Mo.  145 
Davis  V.  Aubin,  24  Vt.  55 

V.  Garrett,  6  Bing.  716 

194 
V.  Wabash  &  R.  R.  Co.,  ' 
89  Mo.  340 
Davidson  v.  Burnand,  L.  R.  4  C 
P.  117 
V.  City  Bank,  57  N.  Y. 

81 
V.    Graham,     2    Ohio 
State,  131 

30 


261 
250 

272 

298 

328 
367 

262 

496 
491 

197 

190 

270 

364 

132 


Y^         .  J  _  „  SECTION 

Davidson  v.  Gwynne,   12   East, 

381  283    381 

Day  V.  Ridley,  16  Vt.  48  '•  200 

Dean  v.  King,  22  Ohio  St.  119 

n    ,  1  ^r  -^'  32.  167,  432 

Dedekaur  v.  Vose,  3  Blatchf.  44 

243    321 
Dederer  v.  Delaware  Ins.  Co.,  2  ' 

Wash.  C.  C.  61    '  206,  209 

Degitz  V.  Holland,  6  Chicago  Le-  ' 

gal  News,  224  (Marine  Ct.  N. 

r^^-)  129,  150 

Deming  v.  G.  T.  R.  R.  Co.,  48 

N.  H.  455 
De  Moet  v.  Laraway,  14  Wend 

(N.Y.)225  192,203 

Dennis  v.  0.  C.  &  B.  R.  R.  Co., 

51  Iowa,  338 
Denny  v.  New  York  Central  R. 

R.  Co.,  13  Gray  (Mass.),  481 
Denton  v.  C,  R.  L  &  P.  R.  R. 

Co.,  52  la.  161 
Depeyster  j;.  Columbian  Ins.  Co., 

2  Caines,  85 
De    Rothchild    v.    Royal    Mail 

Steam  Packet   Co.,   21   L.  J 

Ex.N.  S.  273;  S.  C.  7  E.xch. 

734;   14  Eng.  L.  &  Eq.  327 

^  ,  216,  3J9 

Uerwort   v.   Loomer,    21    Conn 

245  ■     109 

Detroit  R.  Co.  v.  Farmer's  Bank 

20  Wis.  127  '     151 

De    Villers    v.    Schooner    John 

Bell,  6  La.  Ann.  Rep.  544    325,  331 
Dibble  v.  Brown,  12  Ga.  217         7    10 
V.  INIorgan,  1  Woods,  406, 
407,  411 

194,201,267,301,400,412 
Dillard  v.  Louisville,  etc.,  R.  R. 
Co.,    2      Lea     (Tenn.),      288 
T..„  101,  102,  135,  150 

Ddlon  i'.  N.  Y.  &  E.  R.  R.  Co., 

1  Hilt.  (N.  Y.)  231 
Directors  B.  &  E.  R.  R.  Co.  v. 

Collins,  7  H.  L.  Cas.  194 
Dixon  V.  C.  &  I.   R.  R.  Co.,  4 
Bissell's  Rep.  137 
V.  Reid,  3  B.  ik  Aid.  597; 
S.  C.  1  D.  &  R.  207 

206,  291 
V.  Richmond  and  Danville 
R.   R.   Co.,    74  N.    C. 
538 
V.  Sadler,  9  L.  J.  Ex.  48 
Doane    v.    Keating,    I5    Leio-h 
(V^O,  391  °  70,  85 

465 


328 


326 


64 


34  7 
269 


TABLE   OF   CASES. 


SECTION 

Dodson  V.  Grand  Trunk  Ry  Co., 

7  Canada,   L.  J.   N.   S.   263  ; 

S;  C.  of  Nova  Scotia  100 

Don  V.  Lippman,  5  CI.  &  F.  1  90 

Porsey«.  Smith,  4La.  211  88,273 
Douglass   V.  People's   Bank,   32 

Am.  &  Eng.  R.   Cases,   510; 

S.  C.  5  Southwaite  Rep.  420  517 
Dorr  V.  N.  J.  Stm.  Nav.  Co.,  11 

N.  y.485  129 

Dows  V.  Exch.  Bank,    1    Otto, 

484,  485,  487,  489,  510,  521 
V.  Greene,    16    Barb.    N. 
y.  72  ;  32  Barb.   490  ; 
24  N.  Y.  638 

2,  159.  533,  534,  538, 
V.  Perrin    16  N.   Y.   325 

461,  533 
V.  Rush,    28    Barb.    157 

2,  534,  538 
Dray  sen  v.  Home,    32    L.    T. 

N.  S.  691;  23  W.  R.  793^  150 

Drew  V.  Red  Line   Trans.   Co., 

3  Mo.  App.  Rep.  495  11,  102 

Droege  v.  Stuart,  L.  R.  2  P.  C. 

505  288 

Dunlop  V.  International  Steam- 
boat Co.,  98  Mass.  371  36  i 
Dunn  V.  Branner,   13  La.  Ann. 

Rep.  453  11,  63  I 

Dunseth  v.  Wade,  2    Scamraon 

(111.),  285  197,  351 

Durbrow  v.  McDonald,  5  Bosw. 

130  542 

Dwighty.  Brewster,  16  Mass.  50     260 
Dw^°er  v.  Gulf,  etc.,  R.  Co.,  69 

Texas,  707  397 

Dyke  v.  Erie  Railway,  45  N.  Y. 

113  91 

D.  &  B.  C.  Ry.  Co.  v.  McKen- 

zie,  43  Mich.  609  328 

D.    &  M.  R.   Co.  V.  Farmers  & 
Mechanics'  Bank,  20  Wis,  122 

140,  157,  340 


E. 


105 

158 

129 
294 

253 


303 


Earle  v.  Rowcroft,    8  East,   126 

206,  209 
Earnest  v.  Exp.  Co.,  1  Woods, 

573  38,  39,  103 

E.  &   C.  R.   R.  Co.  V.   Andro- 

scogf^in    Mills,    22    Wall.  594 

(U.  S.  S.  C.)  ;   32   Leg.  Int. 

355  323,  526 

466 


BECTIOH 

E.  &  C.  R.  R.  Co.  r.  Young,  28 

Ind.  516  114 

E.  T.  R.  R.  Co.  V.  Nelson,  1  Cold. 

(Tenn.)  272  135,  329,  343 

E.  Tenn.  R.   R.  Co.  v.  Rogers, 

6  Heisk.  (Tenn.)  143  327,  329 

East  Tennessee,  etc.,  R.  R.  Co. 

y.  Whittle,  27  Ga.  535         217,220 
East   Tenn.,  etc.,  R.  R.  Co.  v. 

Wright,  76  Ga.  532  112,  269 

E.  T.,  Va.  &  Ga.  R.  R.  Co.  i-. 
Brumley,  5  Lea  (Tenn.),  401 

150,  340 
East  T.,  Va.  &  Georgia  R.  Co. 

I'.  Johnson,  75  Ala.  596 
E.  W.  T.  Co.  V.  Dater,  91  111. 

195 
Edsall  V.  C.  &  A.  R.  &  T.  Co., 

50  N.  Y.  661 
Edwards  i'.  Sherral,  1  East,  604 
V.  Str.  "  Cohawba,"  14 

La.  Ann.  Rep.  224 
V.  White  Line  Transit 
Company,  104  Mass. 
159 
Ela  V.  Express  Co.,  29  Wis.  611 

414,  477,  480 
Elkins  V.  Empire  Trans.  Co.,  2 
W.  N.  C.  (Penna.  S.  Ct.)  403 

34,  75 
EUershaw  v.  Magniac,  6  Ex.  569 

482,  529 
Elliot  V.  Rossell,  10  Johns.  1  188 

Ellis  V.  Willard,  9  N.  Y.  529  47,  376 
Ellsworth  V.  Tartt,  26  Ala.  733  345 
Elmore  r.  Naugatuck  R.  R.  Co., 

23  Conn.  457 
Elwell  V.  Skiddy,  77  N.  Y.  282 
Empire  Trans.  Co.  v.  Wamsutta, 

etc.,  Co.,  63  Pa.  St.  14 
English  V.  Ocean  Stm.  Kav.  Co., 

2'Blatchf.  C.  C.  Rep.  425 
Erb  V.  G.  W.  R.  R.  Co.,  42  U.  C. 
Q.  B.  90,  5  Duval  (Can- 
ada S.  C),  179;  affirm- 
ing 3  Tupper  (Cent. 
App.),  456  167,  428,  429 

V.  Keokuk  Packet  Co.,  43 

Mo.  53  25 

Erie    Dispatch    v.    Jackson,    87 

Tenn.  490  144 

Erie  R.  R.  Co.  v.  Lockwood,  28 

O.  St.  350,  358  226,  228,  348 

Erie  R.  R.  Co.  v.  Wilcox,  84 

111.  239  113,  153,  223,  329 

Esposito  V.  Bomden,  L.  J.  27  Q. 
B.  17  306 


328 
367 

133 

62 


TABLE   OF   CASES. 


,>  .     ,  SBCTION 

Ji^vans  V.  Atlanta  &  West  Point 

R.  R.  Co.,  56  Ga.  498  52 
V.  Dunbar,  117  Mass.  546  222 
V.  Fitchburg  R.  R.   Co., 

Ill  Mass.  142  217 

V.  Button,  4  M.  &  G.  954    306 
V.   Marlett,    1    Ld.    Ray- 
mond, 271  493 
V.  Nicholl,  4  Scott  N.  R. 
43                                           491 
Evansville  R.  R.  Co.  v.  Burne, 

55  Tex.  323  136 

Everleigh    v.  Sylvester,  2  Brev. 

(S.  C.)178  191,192 

Everett  v.  Saltus,  15  Wend.  474    471 
V.  Southern  Ex.  Co.,  37 

Ga.  688;  46  ib.  303    38,  39 
Everth    v.    Hannani,    6    Taunt. 

^  3^^  206,  209 

Ewart  V.  Street,    2   Bailey  (S. 

C),  157  193 

Exchange    Bank   v.    Rice,    107 

Mass.  37  513 

Exchange  Shipping  Co.  v. 
Dixon,  L.  R.  12  App.  Cases, 
11  ;  56  L.  J.  Q.  B.  266  ;  35 
U.  R.  461  31 

Ex  parte  Bonner,  L.  R.  2  Ch. 

278  ^g5 

Ex  parte  Davis,  L.  R,  13  Ch.  D. 

628  547  j 

Express   Co.    v.   Caldwell,     21 
Wallace,     267 

103,  104,  386,  389 
V.    Hunnicutt,    54 

Miss.  566  388 

V.      Kountze,    8 

Wall.  342      103,  295 
Ezell  V.  English,  6  Porter,  311 

105,  480 
V.  Miller,  6  Port.  307  105 


461 


531 


Fairchild  v.  Slocum,   19  Wend 

(N.  Y.)  329  268 

Falkenberg  v.  Clark,   11    R.   I 

279  157 

Falkenau  v.  Fargo,  3  Jones   & 

Sp.  (N.  Y.  Supr.  Ct.)  332  150 

i^  alvey  v.  Georgia  R.  Co.,  76  Ga, 

597  329 

V.  N.    Y.  Co.,   15    Wis. 
129  151    igi 

Farina  v.  Home,   16  M.  &  W 

119  *     424 


Farmers'    Bank    v.    Logan,    74 

N.  Y.  568  427,  510 

Farmers',  etc.,  Bk.  v.  Champlain  ' 

T.  Co.,  18  Vt.  131  ;   S.  C.  23 

"^*-  186  137^  328 

Farmers  and  Mechanics'  Bk.  v.  ' 

Erie  Ry.  Co.,  72  N.  Y.  188 
Farmers  &  Mechanics'  Nat.  Bk. 

V.  Hazeltine,  78  N.  Y.  104 
Farnham  v.  C.  &  A.  R.  R.  Co., 

55  Penna.  53 

102,  133,  150,  223,  228 
warrant  v.  Barnes,  11  C.  B.  N. 

S.  553  246 

l^assett    V.    Ruark,  3   La.    Ann 

Rep.  694  20,54 

i^atman  v.   Cincinnatti,  etc.,   R 

R.  Co.,  2  Disney,  248  198 

t  aulkner  v.  Hart,  82  N.  Y  413  • 

S.  C.  37  Am.  Rep.  574 

^  ....  ,  94,223,348 

l^ay   V.    Alliance    Ins.    Co.,    16 

Gray,  455  400,  402 

b  earn  v.  Richardson,  12  La.  Ann 
^Kep.  752  15,  180,  181 

l^earon    v.    Bowers,    1     H.    Bl. 

364 ;    1    Sm.    Ldg.   Cases,  p! 

782  455    ^50 

Feige   v.    Mich.  Cent.    R.    Co  ,  ' 

62  Mich.  1 
Feinberg  v.  D.  L.  &  W.  R.  Co. 

(N.  J.),  20  Atl.  Rep.  33 
Feital  V.  Middlesex  R.  R    Co 

109  Mass.  398  ' 

Fellows  V.   Stm.  P.  W.  Powell, 

16  La.  Ann,  Rep.  316 

T?     .  ■„     ,  18<^,  432 

i^enton  v.  Braden,  2  Cranch  C 

C.  550  ■     472 

Ferguson  v.  Brent,  1 2  Md.  9 

188,  192,  193,  267,  273,  275 
V.  Cappeau,  6  Harris  & 

Johnson  (Md,),  394     176 
V.  Domville,  3  P.  &  B. 
(New     Brunswick 
Reps.)  576  364,  397 

Livingston,    64   Barb. 

1.-  n        nu-  129,  151 

l^ield  V.  Chicago,   etc.,  Ry.,  7I 

v^-Hu  t?^-       ,   r.     ^^^'  1-^^'  329,  339 

h  ifth  National  Bank  v.  Bayley 
115  Mass.  228 

Fillebrown  v.  Grand  Trunk  R. 
R.  Co.,  55  Me.  462 

Finlay  v.  Liverpool,  etc..  Steam- 
ship Co.,  23  L.  T.  N.  S.  Exch. 
251  300,  304 

467 


400 


194 


328 


Fibel   V 

179 


511 


119 


TABLE   OF   CASES. 


BECTIOM 

Finn  v.  West  R.  R.  Corp.,  112 

Mass.  524  165 

First      Nat'l     Bk.      Cairo      v. 
Crocker,  111  Mass.   1G.3 

479,  516,  518,  519,  521 
First  Nat.  Bk.  v.  Dearborne,  115 

Mass.  219  491 

First   National   Bank  v.  Kelly, 

57  N.  Y.  34  510 

First  Nat.  Bk.  Memphis  v.  Pettit, 

9  Heisk.  447  533 

First  National  Bank  of  Toledo  v. 

Shaw,  61  N.  y.  283  90 

Fish  V.  Chapman,  2  Georgia,  349 

37,  100,  185,  201 
«.  Clark,  49  N.  Y.  122  10 

Fisk  V.  Newton,  1  Denio,  45  198 

Fitzgerald  v.  Adams  Exp.  Co., 

24  Indiana,  447  ^        42 

Fitzhugh  V.  Wyman,   9    N.  Y. 

559  14,  64 

Fleming  v.  Marine  Ins.  Co., 
3  W.  &  S.  (Fa.) 
144  273 

V.  Mills,  5  Mich.  420  2 

Fletcher  v.    Gillespie,    3    Bing. 

635  243 

V.  Inglis,  2  B.  &  Ala. 

315  269,  275 

Flierboom  v.  Chapman,  13  M.  & 

W.  230  286 

Flinn  v.  Phila.,  etc.,  R.  R.  Co., 

1  Houston,  469  HI 

Flower  v.  Downs,  12  Robinson 

(La.),  101  17,  414 

Forbes  v.  B.  &  L.  R.  R.  Co., 

133  Mass.  154  426,  427 

Forepaugh  v.  Del.,  etc.,  R.  R. 
Co.,  6  Pa.  County  Ct.  Rep. 
228  133 

Forsvthe  v.  Walker,  9  Barr,  148 

414,  415 
Forward  v.  Pittard,  1  T.  R.  27 

190,  192,  223,  294,  295 
406  "Hogsheads  of  Molasses," 

4  Blatch.  319  372 

Fowler  v.  Cooper,  3  Louisiana, 

215  476 

V.  Davenport,  21  Texas, 

626  136,  201,  266 

V.  L.  &G.W.  Stm.  Co., 

23  Hun,  N.  Y.,  196  '        9 
V.  Meikelham,  7  Lower 
Canada  (Q.  B.),  367 

364,  496 
V.  Stirling,  3  L.  C.  Jur- 
ist, 103  (Supr.  Ct.)  14 
468 


BECTIOJI 

Fox  V.  Boston,  etc.,  R.  R.  Co., 

148  Mass.  220  325 

V.  Holt,  36  Conn.  558  176 

V.  Nott,  6  H.  &  N.  637  442 

Foy  V.  T.  &  B.  R.   R.  Co.,  24 

Barb.  (N.  Y.)  382  328,  339 

Fragano  v.  Long,  4  B.  &  C.  219       15 
Frank  v.  Adams  Ex.  Co.,  18  La. 

Ann.  Rep.  279  228 

r.  Hoev,  128  Mass.  163        472 
Freeburg  Coal  Co.  v.  U.  R.  T. 

Co.,  10  Mo.  App.  596         328,  829 
French  v.  Bufialo,  etc.,   R.  R. 
Co.,  4  Keves,  N.  Y.  108;   S.  s 
C.  2  Abb. 'App.  Dec.  196    129,  260 
Friedlander  I'.  Texas,  etc.,  R.  R. 

Co.,  130  U.  S.  416       167,  180,  428 
Friend  i'.  Woods,  6  Gratt.  (Va.) 

189  188,  191,  192,  266 

Fuin  V.  Western  R.  R.  Co.  259 

Furman    v.   Union   Pacific    Ry. 

Co.,  106  N.  Y.  579  414 

F.  &  W.  R.  R.  Co.  V.  Hanna,  6 
Gray  (72  Mass.),  539  345 


G. 


Gabay  v.  Lloyd,  3  B.  &  C.  793 

222,  269 
Gage  V.  Jaqueth,  1  Lansing,  N. 

Y.  207  2,  67 

V.  Morse,  12  Allen  (Mass.), 

410  356,  413 

V.  Tirrell,  9  Allen  (Mass.), 

299  186,  292 

Gaines  v.   U.  T.  Co.,   28  Ohio 

State,  418  132,  156,  161 

Gaither  v.  Barnet,  2  Brevard  (S. 

C),  p.  488  184 

Gallin  V.  L.  &  N.  W.  R.  R.  Co., 

L.  R.  10  Q.  B.  212  100 

Gait  V.  Archer,   7  Gratt.  (Va.) 

307  200 

GanneU  v.  Ford,  5  L.  T.  N.  S. 

604  217,  257 

Gardner  v.  Trechmann,  L.    R. 

15  Q.  B.  D.  154  74 

Garey  v.  Meagher,  33  Ala.  630       178 
Garrigues    v.    Cone,    1    Binney 

(Pa.),  592  298 

Garrison  v.  Memphis   Ins.  Co., 

19  How.  312  223,  272 

Gass  V.  New  York,  etc.,  R.  R. 

Co.,  99  Mass.  220  345 

Gatliffe   I'.  Bourne,  4  Bing.  N. 

C.  314  223 


TABLE   OP  CASES. 


SECTION 

Gauche  v.  Storer,  14  La.  Ann. 

Rep.  411  45,  378,  400 

Gavarron   v.   Kreeft,   L.  R.    10 

Exch.  274  529 

Geipel  v.  Smith,  L.  R.  7  Q.  B. 

404  306,  307 

G.    &  B.   R.   Nav.   Co.  v.  Mar- 
shall, 48  Ind.  596  295,  353 
Georgia  R.  R.  Co.  v.  Beatie,  66 

Ga.  438  112 

Georgia  R.  R.  Co.  v.  Gann,  68 

Ga.  350  112,  346 

Georgia  R.  R.  Co.  v.  Spears,  66 

Georgia,  485  101,  112 

German  v.  Chicago,  etc.,  R.  R. 

Co.,  38  la.  127  115,  261 

Germania  Fire  Ins.  Co.  v.  M.  & 

C.  R.  Co.,   72  N.  Y.   90;    7 

Hun  (N.  Y.),  233 

65,  150,  151,  223 
Germania  Fire  Insurance  Co.  v. 

The  Lady  Pike,  17  Am.  Law 

Reg.    (O.   S.)   614;   S.    C.    2 

Bissell,   141  190 

Germania  Ins.  Co.  v.  La  Crosse, 

etc.,  Co.,  3  Bissell,  501  400 

Gibbon  V  Michael's  Bay  Lumber 

Company,  7  Ontario,  746  80 

Gibbon  v.  Faynton,  4  Burr.  2298  39 
Gibbons  v.  Farwell,  63  Mich.  344  414 
Gibson   V.  Amer.  Merch.   Union 

Ex.  Co.,  3  N.  Y.,  S.  C.  501       150 
Gibson  V.  Caruthers,  8  M.  &  W. 

337  532 

V.  Stevens,  8  How.  384       493 
Giglio    V.    Britannia,    31     Fed. 

Rep,  432  253 

Gill  V.  Manchester,  etc.,    R.  R. 

Co.,  L.  R.  8  Q.  B.  186        220,  345 
Gillespie  v.  Thompson,  2  Jur.  N. 

S.   713   n.  ;   S.  C.  6  El.   &  B. 

47  7  n.  ;  36  Eng.  L.  &  Eq.  227     243 
Gillet  V.  Ellis,  11  111.  579  190 

Gilmore  v.  Carman,  1  Sm.  &  M. 

Miss.  279,  303  9,  223,  272 

Gilson  V.  Madden,  1  Lansing  (N. 

Y.),  172  368 

Giraudel  v.  Mendiburne,  3  Mar- 
tin's La.  Rep.,  N.  S.  509  65 
Glass  V.  Goldsmith,  22  Wise.  488 

14,27 
GleadelLw.    Thomson,  56    New 

York,  194  400,  402 

Gledstanes  v.  Allen,  12  C.  B.  202       74 
Glenister  v.  Great  Western  R.  R, 
.     Co.,  22, W.  R.   72;  29  L.  T. 

N.  S.  423  100 


Glenn  v.  Southern  Ex.   Co.,  86 

Tenn.  594  135 

Glidden  v.  Lucas,  7  Cal,  26  496 

Glynn  v.  East  and  West  India 
Dock  Co.,  L.  R.  7  App.  591  ; 
6  Q.  B.  D.  475;  1  H.  Bl. 
364;   11  Q.  B.  Div.  327 

427,  442,  455,  457,  466,  495 
Goddard    v.    Malloy,    52    Barb. 

(N.  Y.)   87  197 

Goggin  V.  K.  R.  R.  Co.,  12  Kan. 

416  116,  387 

Goldey  v.  Penn.  R.   R.    Co.,  30 

Pa,  St.  242  133 

Goldschmidt     v.    Whitmore,     3 

Taunt.   508  206,  208 

Goodman  v.  Harvey,  4  Ad.  &  E. 

870  453 

V.   Simonds,   20  How. 

343  453 

V.     Stewart,      Wright 

(Ohio),  216  359 

Goodrich  v.  N orris,  1  Abbott,  196 

15,  25 
V.  Thompson,  44  N.Y. 

324  198 

V.  Thompson,  4   Rob. 

N.  Y.  75  170 

Gordon  v.  Buchanan,  5  Yerger, 

Tenn.  71  9,  268,  275 

*v.  Great  Western  R.  W. 
Co.,  25  Upper  Canada 
(C.  P.)  Rep.  488;  34 
W,  C.  Q.  B.  224 

325,  331,  348,  350 
V.  Remington,   1   Camp. 

123  225 

V.  Ward,  16  Mich.  360         165 
Gorham  Mfg.  Co.  v.   Fargo,  45 

How.  Pr.  90  35 

Gosling  V.  Higgins,  1  Camp.  451  305 
Gott  V.  Dinsniore,  111  Mass.  45,  121 
Gould  V.  Chapin,  10  Barb.  N.Y.' 

612  343 

Gould  V.   Hill,  2  Hill  (N.  Y.), 

623  129,  223 

V.  Oliver,  4  Bing.   N.  C. 
134;   2  M.  &  G.  208 

239,  249,  250 
Gowdy  t).  Lyon,  9  B.  Mon.  (Ky.) 

112  46 

Grace  v.  Adams,  100  Mass.  505 

121,  150,  151,  159,  223 

Gracie  v.  Palmer,  8  Wheaton,  605    360 

GrafF  v.  Foster,  67  Mo.  512  472 

Graham    v.    Davis,    4    Ohio   St. 

362  132 

469 


TABLE   OF   CASES. 


SECTION 

Graham  v.  Hille,  10  Bom.  H.  C. 

Rep.  60  251 

V.  Peiina.  Ins.  Co.,  2 
Washington,  C.  C. 
113  17 

Grand  Trunk  Railway  Co.  v.  At- 
water,  18  Lower  Canada  Jurist. 
53  347 

Grant  v.  Norway,  10  C.  B.  187, 
665;  2  Eng.  L.  &  Eq.  337 

15,  167,180,  428,  429 
Gray  v.  Carr,  L.  R.  6  Q.  B.  522       74 
V.  Jackson,  51  N.  H.  9     94,  329 
V.  Mo.   River  Packet  Co., 

64  Mo.  47  374 

Great  Northern  R.  R.  Co.  v. 
Morville,  7  Railway  &  Canal 
Cas.  830  100 

Great  Nor.  R.  R.  Co.  v.  Shep- 
herd, 14  Eng.  L.  &  Eq.  Rept. 
367  38 

Great  Northern  Railway  Co.  v. 
Swaffield  L.  R.,  9  Exch.  132, 
136  285 

Great  Western  Railway  Co.  v. 
Blower,  20  W.  R.  776;  L.  R. 
7  C.  P.  665  217,246 

G.  W.  R.  Co.  V.  Crouch,  3  H. 

&N.  183  325 

Great    Western    R.    R.    Co.    v. 

Hawkins,  18  Mich.  427        2J7,  256 
G.  W.   R.  Co.  V.  McDonald,  18 

111.172  48,344 

G.  T.  R.  Co.  V.  Fitzgerald,  5  Du- 
val (Canada),  204  173 
Green  &  Barren  River  Nav.  Co. 

V.  Mafshall,  48  Ind.  596       353,  404 
Green  v.  Elmslie  Peaks,  N.  P.  C. 

278  (34  Geo.  III.)    274,  296 
V.  Sichel,  7  C.  B.  N.  S. 
747;  6Jur.(N.S.)827; 
29L.  T.  (C.  P.)  213;  8 
W.  R.  (C.  P.)  663  371 

V.  Southern  Exp.  Co.,  45 
Ga.  305  37 

Grev's     Executors     v.     Mobile 

Trans.  Co.,  55  Ala.  387       105,  226 
Griffith  V.  Ingledew,  6  Serg.  & 

Rawle,  429  471,  475,  476 

Grill  v.  Iron  Screw  Colliery  Co., 
Limited,  L.  R.  3  C.  P.  476; 
L.  R.  1  C.  P.  600;  S.  C.  12 
Jur.  N.  S.  727;  35  L.  J.  C.  P. 
321  ;  14  W.  R.  893  ;  affirmed, 
L.  R.  3  C.  P.  476  205,  212,  273 
Griswold  V.   Haven,    25  N.  Y. 

604  434 

470 


BBCTI05 

Grosvenorw.  Phillips,  2  Hill,  14  7 

491,  492 
Grove  V.  Brien.  8  How.  439  471,  473 
Guillaume  w.  II.  &  A.  PacketCo., 

42  N.  y.  212  129 

Gulf,  etc.,  Ry.  Co.  v.  Trawick, 

68  Tex.  314  136 

GuUischein  v.  Stewart  Brothers, 

L.  R.  13  Q.  B.  D.  317  74 

Gulliver  v.  Adams  Ex.  Co.,  38 

111.  503  8 

Gurney  v.  Behrend,  3  El.  &  Bl. 

622  523,  527,  533 


H. 

Hadd  V.  U.  S.  &  E.  Express  Co., 

52  Vt.  335  328 

Haddow   V.   Parrv,    3  Taunton, 

303  (Eng.  C.  P.)  54 

Hahn  v.  Corbett,  2  Bing.  205 

269,  274,  296 
Haille  V.  Smith,  1  B.  &  P.  563 

472,  491,  492,  504 
Hale  V.  Barrett,  26  111.  195  362 

V,  New  Jersey  S.  N. 
Co.,  15  Conu.  539 

109,  192,  223 
V.    Steam    Nav.    Co.,    15 
Conn.  539  203 

Hall  V.  Cheney,  36  N.  H.  26 

201,  223,  294 
V.  Eastwick,  1  Lowell,  456  355 
V.  G.  T.  R.Co.,34Up.  Can. 

Q.  B.  517  25 

I'.  Mayo,  7  Allen  (89  Mass. 

454),  25,  26,  167 

V.  Pennsylvania  R.  R.  Co., 
14  Philadelphia,  414; 
S.  C.  37  Legal  Intelli- 
gencer, 64  ;  Lawson  on 
Contracts  of  Carriers,  p. 
419  228,  316 

17.  Renfro,  3  Mete.  (Ky.)  51 

10,  127,  220 
V.  Ship  Chieftain,  9  Louis- 
iana,  318  183,  479 

Hallett  V.  Columbian  Ins.  Co.,  8 

Johns.  (N.  Y.)  272  210 

Hallgarteu  v.  Oldham,  135  Mass. 

1  505,  506,  507 

Hallidayv.  Hamilton,  11  Wall. 

560  436,  533 

Halsey  v.  Warden,  25  Kan.  128     519 
Hamilton  v.  Pandorf,   L.   R,   12  , 

App.  Cases,  518  '         299 


TABLE   OF   CASES. 


346 
384 
191 
100 
343 


__  SECTION 

Hamilton  v.  Railway  Co.,  23  U. 

C.  Q.  B.  600  100 

V.  WestN.  e,  R.  Co., 

96  N.  C.  398  67,  70 

Hammack  v.  White,  31  L.J,  C. 

P.   129  215 

Hand  v.  Baynes,   4  Whart.  Pa. 

204  197    277 

Hansen  v.  Flint,  etc.,  R.  R.  Co.,  ' 

73  Wis.  346  170,   329 

Harmon  v.  N.  Y.  &  E.  R.  R. 
Co.,  28  Barbour,  323;  65  N. 
Y-  111  24,  214,  166 

Harmony  v.  Bingham,  12  N.  Y. 

99  194    199 

Harp    V.    The    Grand    Era,     1  ' 

Woods  Rep.  185 
Harrington  r.  McShane,  2  Watts, 
443 
V.  Syles,    2    Nott.    & 
McC.  S.  C.  88 
Harris  v.  Edmonstone,   4  Low. 
Can.  Jur.  40 
V.   Grand  Trunk  Ry.,  15 

R.  L  371 
V.  Northern,  etc.,  R.  R. 
Co.,  20  N.  Y.  232 

217,  220 
V.  Packwood,  3  Taunton, 

264  100 

V.  Rand,  4  N.  H.  259 

190    199 
Harrison  v.  Hixson,    4    Blackf.  ' 

Ind.  226  266 

V.  Roy,     10     George, 

Miss.  396  9 

Hart  V.  Allen,  2  Watts,  Pa.  114     193 
V.  Penn.    Railroad    Co.,    2 

McCrary,  333 
V.  Rensselaer,  etc.,  R.   R. 

Co.,  8  N.  Y.  37 
V.  Ship  Jane  Ross,   5  La. 
Ann.  Rep.  264 
Hartness    v.    G.    W.  R.  Co.,   2 

Brown  (Mich.),  80       122,  155,  157 
Hartwell   v.   North    Pacific  Ex. 

Co.,  5  Dak.  T.  463 
Harvey  i'.  Pike,    N.    C.  Tenn. 
Rep.  82  ;  S.  C.  J.  A. 
Dec.  698 
V.  Rose,  26  Ark.  3 
V.  Terra  Haute  &  Ind. 
R.    R.   Co.,    74  Mo. 
538 
Hastings  u.  Pepper,  11  Pickering- 
.  (Mass.),  41  °44^  47 

Hatch  V.  Tucker,  12  R.  L  501         364 


424 

479 

206 


299 


232 


103 

345 

49 


154 


273 

10 


34 


rr         1  m,  fKCTIOW 

Hatchett  v.  The  Compromise,  12 

La.  Ann.  Rep.  783  273,  352 

Hatfield  v.  Phillips,  9  M.  &  W, 

649 
Hausman  v.  Nye,  62  Ind,  485 
Havelock    v.    Hancill,   3    T,   R. 

277 
Hawkins  v.   G.    W.    R.  R.,   17 

Mich.  57        217,  238,  256 
Hayes  v.  Wells,  23  Cal.  185  39 

Hayn  v.  Culleford,  48  L.  J.  Q.  B, 

372  943 

Hays    V.    Kennedy,    41   Pa.    St. 
378;   S.  C,  3  Grant  (Pa),  351 

191,  201,  212,  213,  269 
Hazard  y.  New  England  Marine 

Ins,  Co,,  1  Sumner,  218 
Headrick  v.  V.   &  T.   A.  L,  R, 

R.  Co.,  48  Ga.  545 
Heineman  v.  G,  T,  R.  R.  Co.,  31 

How.  Pr.  (N.  Y.)430      71,  77,  129 
Heiskell   v.    Farmers    and    Me- 
chanics' Nat.  Bank,  8  Norris, 
155  414 

Helliwell  V.  G.  T.  R.  W.  Co., 

10  Bissell,  170  63,  65 

Helsby  V.  Mears,  5  B.  &  C,  504     'l70 
Henderson     v.    The      Comptoir 
d'Escompt  de  Paris,  5  P,  C. 
260 
Hendrick  v.  Virginia  R.  R.  Co., 

48  Ga,  545 
Hendricks  v.  The  Morning  Star, 

18  La,  Ann,  Rep.  353 
Henley  v.  The  Brooklyn  Ice  Co., 

14  Blatchf.  522 
Henry    v.    Philadelpliia    Ware- 
house Co.,  81  Pa.  St.  76 
Hepburn  v.  Lee,  14  La,  76 
Hermann   v.    Jorhrick,   21   Wis, 

536 
Heme  v.  Garton,  2  E,  &  E.  G6 
Herrick  v.  Gallagher,  60  Barbour 

(N.  Y,),  .566 

Hibbert  v.  Martin,  1  Camp.  539 

Hibernia  Ins.    Co.   v.   St.   Louis 

Trans.  Co.,  5  McCrar}',  397; 

120U.  S,  166 

Hibler   v.    McCartney,    31   Ala, 

501  10.5,  223,  271 

Hide  V.  Proprietors,  1  Esp,  36  100 

Higgins  V.  New  Orleans,  etc.,  R.  • 
R,R.  Co.,  28  La.  Ann. 
Rep.  133 
V.  U.  S.  M,  S.  S.  Co.,  3 
Blatchf.  (U.  S.  C.  C.) 
282  14,  64 

471 


505 

36 

199 

412 

90 

479 

329 
246 

384 
206 


269 


118 


TABLE   OF   CASES. 


SECTION 

Hill  V.  B.  C.  R.  &  N.  R.  Co.,  60 

Iowa,  196  343,  344 

V.  Boston,  etc.,  R.  Co.,  144 

Mass.  284  260 

V.  Malkill,  36  Fed.  Rep.  702     243 
V.  S.  B.  &  N.  Y.  R.  Co.,  73 
N.  Y.  351  ;  reversing  S. 
C.  8  Hun,  296 

6.5,  66,  129,  150,  151 
V.  Sturgeon,  28  Mo.  323     251,  268 
V.  Syracuse,  B.  &  N.  Y.  R. 
R.  Co.,  8  Hun  (N.  Y.), 
296  66 

Hill  Mfg.  Co.  V.  B.  &  L.  R.  R. 
Co.,  104  Mass.  122 

36,  323,  325,  327,  329 
Hill   Manuf,   Co.   r.  Providence 

Steamship  Co.,  113  Mass.  495       36 
Hinckley  v.  N.  Y.  C.  &  H.  R.  R. 
Co.,  56  N.  Y.  429  ;   3  Thomp. 
&  C.  (N.  Y.)  281  65,  333 

Hinsdell  v.  Weed,  5  Denio  (N 


8BCTI0W 

Hood's  Ex'rs  v.  Nesbit,  2  Dallas, 

137  207 

Hooker  v.  Gormer,  2  Hilt.   (N. 

Y.)  71  385 

Hooper  v.  C.  &  N.  W.  Ry.  Co., 

27  Wis.  81  329,  343 

V.  Ratlibone, Taney  Dec. 

519  269 

V.  Wells,  Fargo  &  Co., 

27  Cal.  11  107,  338 

Hopkins  IK  Westcott,  6  Blatch- 

ford,  64  37 

Horrell  i\  Parrish,  26  La.  Ann. 

Rep.  6  63 

Horseman  v.  G.  T.   R.  R.  Co., 

31  U.  C.  Q.  B.  535  32 

Hosea  v.  McCrory,  12  Ala.  349 

169,  178 
Hostetter  v.  Baltimore,  etc.,  R. 
R.   Co.,  11.  Atl.  Rep.  (Pa.) 
609  63,  64,  336 

Howe  V.  Parker,  2  T.  R.  376  480 


Y.),   172 


375,  378  '  Houston,  etc.,  Nav. Co.  I'.  Dwyer, 


Hirsch  V.  Leathers,  23  La.  Ann. 

Rep.  50  351 

Hoadley  v.  N.T.  Co.,  115  Mass 


29  Te.xas,  3  76  192 

Houston  &  T.  C.   R.  R.  Co.  v. 
Burke,  55  Te.xas,  323  37,  136 


304 


Hoare  v.  Dresser,  5  Jurist.  N.  S. 


121,  150,  193,  196  I  Hovil  v.  Stephenson,  4  Car.  &  P. 


371 


i      469 
530  \  How   r.  Kirchner,   4   Can.   Law 


243 


Hobart   v.  Littlefield,   13  R.  I. 

341  472,  485,  490 

Holbrook  v.  Yose,  6  Bosw.  76 

537,  542 
I'.  AVright,  24  Wend. 

169  ■  492 

Holford  V.  Adams,  2  Duer  (N. 

Y.),  471  374 

HoUaday  v.  Kennard,   12  Wall. 

254  292,  293,  295 

Hollister  v.  Nowlen,  19  Wendell 


Jour.  (O.  S.)  121  359 

Howard    v.    Shepherd,   9  C.    B. 

296  412,  440 

V.  Tucker,  1   Barn.  & 
Ad.  712  428 

Howland  v.  Greenway,  22  How. 

491  305 

Hoyt  V.  Sprague,  61   Barb.  (N. 

Y.)  497  362 

Hubbard    v.    Harnden    Express 
Co.,  10  R.  I.  244,  251  133,  293 


(N.  Y.),  234 


Holmes  v.  Bailey,  92  Penn.  57 

496,  497 
V.  German  Security  B'k, 


10,  37,  38,  129    Hubbersty  v.  Ward,  8  Ex.  330; 


18   Eng.  La.  &  Eq.  551  ;  22 
L.  J.   Exch.   113 

15,  167,  180,  431 


87  Pa.  525 


Holsapple  v.  R.  W.  &  O.  R.  Co., 

86  N.  Y.  275 
Home  Ins.  Co.  v.  W.  T.  Co.,  51 

N.  Y.  93 
Hong  Kong,  etc.,  Corp.  v.  Baker, 
7  Bom.'^H.  C.  Rep.  O.  C.  J. 
203  231,  274 

Hood  V.  Grand  Trunk  R'lway 
Co.,  20  Upper  Canada 
C.  P.  361  217,  257 

jj.  N.  Y.,  etc.,  R.  Co.,  22 
Conn.  502  328 

472 


496,  497    Hudson  v.  Baxendale,  2  Hurl.  & 


N.  575 

129  i  Humphreys  v.  Reed,  6  Whart. 


282 


(Pa.)  435 


275,  361,  378,  403 


411  j  Hunnewell  v.  Taber,  2  Sprague, 

j       1  103,  252 

Hunt   V.  Miss.  Cent.  R.  Co.,  29 
La.  Ann.  Rep.  446 

15,  18,  167,  180,  432 
V.  Morris,  6  Martin  (La.), 

676  102 

Hunter  v.  Potts,  4  Camp.  203 

272,  298 


TABLE   OF   CASES. 


Hunter  V.    The    Morning    Star, 

Newfoundland,  270  223,  226 

Hunter  v.  Wright,  12  Allen,  548     472 
Huntingdon  v.  Dinsmore,  4  Hun 

(N.  Y.),  66  63,  150,  166 

Huntly  V.  Dows,  55  Barb.  310 

356,  358 
Hurkley  v.  N.  Y.  C.  &  H.  R. 

R.   K.   Co.,    3   Thorap.  &  C. 

(N.  Y.)  281  261 

Hutchings  v.  Ladd,  16  Mich.  493 

172,  174,  382 
Hutchinson  v.  Guion,  5  C.  B.  N. 

S.  149  246,  284 

Hyde  u.  New  York,  etc.,   S.  S. 

Co.,  17  La.  Ann.  Rep.  29      22 

Hyde  v.  Smith,  12  La.  144      491 

V.  Trent.  Nav.  Co.,  5  T. 

R.  389  100,  223 

Hyperion's  Cargo,  2  Lowell,  93      356 

H.  &  T.  C.  R.  R.  Co.  V.  Burke, 

55  Texas,  323  38 

H.  &  T.  C.  R.  R.  Co.  V.  Haines, 

44  Texas,  628  190,  194 


I. 


Ibrahim  Moosum  v.  B.  I.  S.  N. 

Co.,  8  Cal.  W,  Rep.  C.  R.  35     394 

Ide  V.  Sadler,  18  Barbour,  32  64 

Illesley  v.  Stubbs,  9  Mass.  65  537 

Illinois,  etc.,  R.  R.  Co.  v,  Adams, 

42  111.  474  ■  113,  239,  254 

Illinois  Cent.  R.  R.  Co.  v.  Cobb, 

72  111.  148  51 

Illinois  Cent.  R.  R.  Co.  v.  Cope- 
land,  24  111.  332  329 

Illinois  C.  R.  Co.  v.   Cowles,  32 

111.  116  49,  329,  343 

Illinois  C.  R.  Co.  v.  Franken- 
berg,  54  111.  88  7,  113,  153,  329 

Illinois  Cent.  R.  R.  Co.  v.  Hall, 

58  111.  409  218,  238 

Illinois  Cent.  R.  R.  Co.  v.  John- 
son, 34  111.  389  325,  327,  329 

Illinois,  etc.,  R.  R.  Co.   v.  Mc- 

Clellan,  54  111.  58  280 

Illinois,  etc.,  R.  R.  Co.  v.  Mor- 
rison, 19  111.  136  113,  261 

Illinois     Cent.    R.    R.     Co.     v. 

Owens,  53  111.  391  190,  192 

Illinois  Cent.  R.  R.  Co.  v.  Read, 

37  111.  484  113 

Illinois    Cent.    R.    R.    Co.    v. 

Smyser,  38  111.  354  113,  223 


SECTION 

Independence  Mills  Co.  v.  Bur- 
lington, etc.,  R.  Co.,  72  Iowa, 

535  343,  400 

Independence  Mills  Co.  v.  Cedar 

Rapids,  etc.,  R.  Co.,  72  Iowa, 

535  400 

Indiana  Natl.  Bk.  v.  Colgate,  4 

Daly,  41  530 

Ind.  &  Cin.  R.  R.  Co.  v.  Rem- 

my,  13  Ind.  518  64,  65 

Indianapolis,  etc.,   R.    R.   Co.  i'. 

Allen,  31  Ind.  394  114,  219,  255 
Indianapolis,  etc.,  R.  Co.  v.  Cox, 

29  Ind.  360  114 

Indianapolis  &  St.  Louis  R.  R, 

Co.  V.  Juntgen,  10  111.  App. 

295  315 

Ingalls  V.  Brooks'  Ed.  Sel.  Cases, 

104  197 

Inhabitants  v.  Hall,  61  Me.  517  336 
In  re  Westinthus,  5  B.  &  Ad. 

817  545,  546,  547 

Ins.   Co.  V.  Sherwood,  14  How. 

365  248,  269 

Insurance  Co.  of  North  America 

V.  St.  Louis,  etc.,  R.  R.  Co., 

3  McCreary,  233  223 

Irish  V.  M.  &  St.  P.  R.  R.  Co., 

19  Minn.  376  342 

Irwin  V.  N.  Y.  C.  R.  R.  Co.,  59 

N.  Y.  S.  C.  473,  653  175,  328 

Isaacsen  v.  N.  Y.  C.  &  H.  R.  R. 

Co.,  25  Hun,  N.  Y.  350  328 

Italian    Bark    Vincenzo    T.,    10 

Benedict  (U.  S.  D.  C),  228  45 
Izett  V.  Mountain,  4  East,  371        100 


Jackson  v.   Union   Marine   Ins. 

Co.,  44  L.  J.  C.  P.  27  269 

Jacobs   V.   Tutt,  33   Fed.    Rep. 

412  40 

Jacobus  V.  St.  Paul,  etc.,  R.  R. 

Co.,  20  Minn.  125  123 

James    v.    Greenwood,    20    La. 

Ann.  Rep.  297  295 

Jefferson  R.  R.   Co.  v.  Irvin,  46 

Ind.  180  397,  496 

Jenkins    v.    Picket,     9     Yerger 

(Tenn.),  480  171 

Jenkyns  v.  Brown,  14  Q.  B.  496 

482,  485 
Jenneson  v.  C.  &  A.  R.  R.  Co., 

5  Clark  (D.  C.  ofPhila.),  409; 

4  Am.  Law  Reg.  234  328,  348 

473 


TABLE   OF   CASES. 


SECTION 

Jenninirs  r.    Grand  Trunk  Ry. 

Co.,  52  Hun  (N.  Y.),  227 

101,  328 
Jessel  V.   Bath,    L.    R.    2   Exch. 

267;  36  L.  J.  Exch.  149;   15 

W.  R.  1041 

61,  167,  428,  429,  430,  433    Kelham  v.  The   Kensington,  24 
Jesson  V.  Solly,  4  Taunt.  52  355        i-a.  Ann.  Rep.  100 

Jobbitt   V.   Coundry,    29    Barb.  Kelley  v.  Bowker,  11  Gray,  428 

(N.  Y.)  509  368  [  Kemp   v.    Coughtry,    11   Johns 


Keone   v.  "Whistler,   2    Sawyer, 

348 
Keith  V.  Amende,  1  Bush,  455 
V.  Murdock,    2   Washing- 
ton, 297 
Keiwert  v.  Meyer,  62  Ind.  587 


232 
45 

363 
93 

203 
32 


Johnson  ;;.   Chapman,   35  L.  J. 
C.  P.  23;  19  C.  B.  N.  S.  563 

239,  250 
Johnson  v.  Dodson,  2  M.  &  W. 

653  ^  472 

V.    Friar,        4      Yerg. 
(Tenn.)   48 

266,  268,  269 
V.    New  York   Central 
R.  R.  Co.,  33  N. 
Y.  610,  reversing 
31  Barb.   N.  Y 


(N.  Y.j  107  202,  294 

V.  Falk,  L.  R.  7  App. 
C.  573,  582;  Ex 
parte  Davis,  L.  R.  13 
Ch.  Div.  628 

533,  .544,  545,  546,  547 
V.    IMcDougall,  23  U.  C. 

Q.  B.  380  412 

Kendall   v.    London,    etc.,    R'v 

Co.,  L.  R.  7  Ex.  373  '      221 

Kendrick  v.   Uelatield,  2  Caines 

(N.  Y.)  67  209 


196  197,  198,  335  I  Kennedy   v.  Dodge,  1  Benedict, 


Johnston  v.  Benson,    4    Moore, 
90;   S.  C.  1  B.  & 
B.  454       216,  268,  317 
V.  Crane,  1   Kerr  (N. 

B.),  356  190,249 

Jones  V.  Hovt,  23  Conn.  157     78,  380 
V.  Nicholson,  10  Exch.  28  ; 

S.  C.  1  B.  &  B.  454      210 
V.  Pitcher,  3   Stew.   &   P. 
(Ala.)  135 

105,  266,  267,  275 
V.  Sims,  6  Porter  (Ala.), 

138 
V.     Walker,      5      Yerger 
(Tenn.),  427 
Joyce  V.  Swank,  1 7  C.  B.  (N.  S.) 

83 
Judson  V.  Western  R.  R.  Co.,  6 
Allen  (88  Mass.),  486 


K. 


472 

17 

489 


341 

74 

261 
534 

301 
48 


386 


Kaiser  v.  Hoey,  16  N.  Y.  St. 
Rep'r,  803 

Kallraan   v.  U.  S.    Ex.  Co.,  3 

Kan.  205  116,  142 

Kansas,  etc.,  R.  R.  Co.  v.  Nich- 
ols, 9  Kan.  235  116,  217 

Kansas,  etc.,  R.  R.  Co.  v.  Rey- 
nolds, 8  Kan.  623;  17  Kan. 
251  116,  217 

Kay  V.  Wheeler,  2  L.  R.  C.  P. 


311  400,  402 

Kenrig  v.  Eggleston,  Aleyn,  93       247 
Kent  V.  Midland  R.  Co.,  10  Q. 

B.  1 
Kern  v.  Deslandes,  10  C.  B.  N. 

S.  205 
Ketchum  v.  American,  etc.,  E,x- 

press  Co.,  52  Mo.  390 
Keyseri'.  Harbeck,  3  Duer,  391 
Kirt"  V.  Old  Colony,  etc.,  R.  R. 

Co.,  117  Mass   591 
Kimball  v.  Brander,  6  La.  711 
V.  Rutland,  etc.,  R.  R. 
Co.,  26  Vt.  24  7 

102,  137,  217 
Kimber  v.   Southern  Exp.  Co., 

22  La.  Ann.  Rep.  158  34 

Kimlock  I'.  Craig,  3  T.  R.  786    491,  533 
37,  121    King  V.  Shepherd,  3  Storv,  349 

!  193,  272,  296 

V.  AVoodbridge,     34     Ver. 
565 
Kinney  v.  Central  R.  R.  Co.,  34 
N.  J.  Law,  513;   32  Dutcher, 
407 
Kirby  v.  Adams  Express  Co.,  2 

Mo.  App.  369  102,  125 

Kirk    V.   Folsom,   23    La.    Ann. 

Rep.  584  269 

Kirk,  etc.,  R.  R.  Co.  v.  Crisp,  14 

C.  B.  527  100 

Kirkland  v.  Dlnsmore,  62  N.  Y. 
171,  reversing  S.   C.   8   Hun, 


151 


130 


302 


474 


272,  2981      296;   4  T.  &  C.  304 


150,  151 


TABLE   OF   CASES. 


SECTION 

Kirkman  r.  Bowman,  8  Robin- 
son (La.),  246 

14,  25,  26,  167,  170,  180 
Kirkpatrick  v.  Araer.  S.  S.  Co.,  ^ 

2  Weekly  Notes  (Pa.),  308  352 

Kitchener  v.  Spear,  30  Vermont, 

545  537 

Klauser  v.  Express  Co.,  21  Wis. 

21  192 

Knapp  V.  U.   S.  &  Canada  Ex- 
press Co.,  55  N.  H.  348  169 
Knell  V.   U.    S.   &  Brazil  S.  S. 
Co.,    1  Jones  &   Spencer  (33 
N.  Y.  Sup.  Ct.),  423            129,  159 
Knight  V.  Cambridge,  1  Str.  581 

(9  Geo.  II.)  205 

Knott  V.   Raleigh,  etc.,  R.  Co., 

98  N.  C.  73  343 

Knowles   v.   Dabney,  105  Mass. 

437  63 

Knox  V.  Schr.  Ninetta,  Crabbe 
(U.  S.  Dis.  C.  Pa.), 
534  67,  88 

Krall  V.  Burnett,  25  W.  R.  305 

70,  380 
Krender  v.   Woolcott,  1    Hilton 

(N.  Y.),  223  325,  331 

Krohn  v.  Nurse,  5  Buch.  (Cape 

of  Good  Hope)  85  321 

Krulder  v.  Ellison,  47  N.  Y.  36     471 
Kyle  V.  B.  &  L.  H.  R'y  Co.,  16 

U.  C.  C.  P.  76  396 

V.  Lawrence  R.  R.  Co.,  10 
Rich.  L.  Rep.  (S.  C.) 
382  331 

K.  C.  St.  J.  &  C.  B.  R.  R.  Co. 
V.  Simpson,  30  Kan.  645  116 


Ladue  v.  Griffiths,  11  Smith,  25 

N.  Y.  364  342 

Laing  v.  Colder,    8  Penna.   St. 

479  133 

Lake  r.  Hurd,  38  Conn.  536  355 

Lake  Shore  &  Michigan  Southei'n 
Rv.  Co.  V.  Bennett,  89  Ind. 
457  315 

Lake  Shore,  etc.,   R.  R.  Co.  v. 

Perkins,  25  Mich.  329  217 

Lamb  v.  Camden,  etc.,  R.  R. 
Co.,  2  Daly,  454;  46 
N.  Y.  271      ' 

102,  225,  348 
V.  Parkman,   1    Sprague, 

343  87,  322 


SECTION 

Lament  v.  Nashville,  etc.,  R.  R. 
Co.,  9  Heisk.  (Tenn.)  58 

190,  193,  194 
Lanata  v.  Ship  Henry  Grinnell, 

13  La.  Ann.  Rep.  24  412 

Landsberg  v.  Dinsmore,  4  Daly 

(N.  Y.  C.  P.),  490  8 

Lanfear  v.  Blossom,   1  La.  Ann. 

Rep.  148  523 

V.  Sumner,  17  Mass.  110     505 
Langworthy  v.  N.  Y.  &  H.  R. 
R.  Co.,   2   E.  D.  Smith  (N. 
Y.),  195  8 

La  Pointe  v.  Grand  Trunk  R.  R. 

Co.,  26  U.  C.  Q.  B.  479  100 

Latham  v.   Stanbury,    3    Stark. 

143  319 

Laughlin  v.  C.    &   N.   W,    Rly. 

Co.,  48  Wis.  204  347 

V.  Gonahl,    11    Robin- 
son, 140  491 
Laurence  v.  N.  P.  &  B.  R.  R. 

Co.,  36  Conn.  63  109,  150 

Laurie  v.  Douglass,  15  M  &  W. 

746  203,  269,  270 

Laveroni  v.  Drury,  8  Exch.  166  ; 

S.  C.  22  L.  J.  Exch.  2         272,  298 
Lawrence  v.  Aberdeen,  5   B.  & 

Aid.  107  222 

V.    McGregor,    1  Wr. 
Ch.  (Ohio)  193 
63,  71,  78,  192,  197,  201 
V.  Minturn,    17  How. 
100 
248,  249,  269,  271,  471 
V.  W.   St.   P.    R.    R. 

Co.,  15  Minn.  390.      328 
Lawton  t;.  Sun  Mutual  Ins.  Co., 

2  Cush.  (56  Mass.)  500        206,  208 
Layng  v.    Stewart,   1    Watts   & 

Sergeant  (Pa.),  222  369 

Leaf  V.  Canada  Shipping  Com- 
pany, 1  Legal  News  (Canada), 
218  362 

Leask  v.  Scott,  2  Q.  B.  376  539 

Lebeau  v.  Genl.  Stm.  Nav.  Co., 
8  L.  R.  C.  P.  88  ;  42  L.  J.  C. 
P.  1  38,  62,  76 

Ledue  v.  Ward,  L.  R.  20  Q.  B. 

D. 475  65 

Lee  V.  Kimball,  45  Me.  172 

533,  539,  542 
V.  R.  &  G.   R.  R.  Co.,    72 

N.  C.  236  131 

V.  Salter,     Hill    &     Denio, 

Supplt.  (N.  Y.)  163  14 

Leeson  v.  Holt,   1  Stark.  148  100 

475 


TABLE   OF   CASES. 


SECTION 

Lemaitre  v.  Merle,  2  Robin.  La. 

402 
Lempriere    v.    Pasley,    2    Term 

R.  483 
Lengsfield  v.  Jones,  1 1  La.  Ann. 

Rep.   624 
Leniv  v.  Dudgeon,   L.  R.   3  C. 

P.  17,   n. 
Lenox  v.  Ins.  Co.,  .3  Johns.  Cas. 


8ECTI0M 

Little  Rock,  etc.,  R.  R.  Co.  v. 

Corcoran,  40  Ark.  375 
Little  Rock,  etc.,  Ry.  v.  Daniels, 

49  Ark.  352 
Little  Rock,  etc.,  Ry.  Co.  v.  Tal- 
bot, 47  Ark.  97  ;  39  Ark.  523 

226,  228 
240  I  Liverpool  Steam  Co.  v.  Phenix 
Ins.  Co.,  129  U.  S.  397 


269 


533 


102 


228 


106 


103 


178 


346 


197 


Leo  V.  St.  P.  M.  &  M.  Ry.  Co., 

30  Minn.  438 
Le  Sage  v.  Great  Western  R.  R. 

Co.,  1  Daly,  306 
Lesinsky  v\  Great  Western  Dis- 
patch. 10  Mo.  App.   Rep.  134     343 
Letchford     v.     The      "Golden 

Eagle,"  17  La.  Ann.  Rep.  9       269 
Levering  v.  Union  Trans.   Co., 

42  Mo.  88  125 

Levois  V.    Gale,    17    La.    Ann. 

Rep.  302  35,  37,  54 

Levy    V.    Pontchartrain    R.    R. 

Co  ,  23  La.  Ann.  477     223 
t'.    Southern  Express  Co., 

4  S.  Car.  234  134,  348 

Lewis  V.  Great  Western  R'way 
Co.,  26  W.  R.  255;  5 
Hurlstone  &  Korman, 
867  260,  261,  388 

V.  Hancock,  11  Mass.  72     363 
V.  Ludwick,     6     Colder 

(Tenn.),  368  293,  294 

V.  McKee,  L.  R.  2Exch, 
37;  S.  C.  L.  R.  4 
Exch.  58  365 

•  V.  Ship    "Success,"    18 

La.  Ann.  Rep.  1      269,  283 
Libby  v.  Gage,  14  Allen  (Mass.), 
261 
V.  Ingalls,  124  Mass.  503 
Lickbarrow  v.  Mason,   5  T.   R. 
683;   2  T.   R.   63;   1   H.   Bl. 
357  ;  6  East,  21 

440,  442,  460,  462,  533,  544 
Limberger  v.  Westcott,  49  Barb. 

(N.  Y.)  283  129,  157 

Lishman  v.   Christie,   L.   R.   19 

Q.  B.  D.  333  17,  73 

Little  V.  Boston,  etc.,  R.  Co.,  66 
Me.    239;    16    Am.  L. 
Reg.  (U.  S.)  442         37,  119 
V.  Fargo,  50  N.  Y.  Supr. 

Ct,  233  316 

V.  Semple,  8  Mo.  99  351 

Little  M.  R.  R.  Co.  v.  Wash- 
burn, 22  Ohio  St.  324  334 

476 


249,  250    Liverpool      &      Great    Western 


96 


346 


375 
414 


Steam    Company   v.    Phcenix 

Ins.  Co.,  129  U.  S.  397 
Livingston  v.  N.  Y.  C.  &  H.  R. 

R.  Co.,  5  Hun  (N.  Y.),  562 
Llovd  IK  General  Iron  Screw  Col- 
lier Co.,  10  L.  T.  N.  S.  586; 

S.  C.  12  W.  R.  882;   10  Jur. 

N.   S.   661;  33   L.   J.  Exch. 

269;  3  H.  &  C.  284  212,  273 

Lock  Co.  V.  R.  R.  Co.,  48  N. 

H.  339  325,  329 

Lockyer  v.  Affley,  1  T.  R.  252 

205,  206 
Loeb  V.  Peters,  63  Ala.  243  537,  542 
Logan  V.  Mobile  Trade  Co.,  46 

Ala.  514  329 

Long  V.  N.  Y.  C.  R.  R.  Co.,  50 

N.  Y.  76  65,  150 

Lord  V.  G.  N.   &  P.   S.  Co.,  4 

Sawyer,  292  103 

Louisana  Bank   v.    Laveille,   52 

Mo.  380  167,  432 

L.  &  N.  R.  R.  Co.  V.  Campbell, 

7  Heiskell  (Tenn.),  253  329 

L.  &  N.  R.  R.  Co.  V.  Oden,  80 

Ala.  38  105,  223,  238 

L.  &  N.  R.   R.  Co.  V.  Sherrod, 

84  Ala.  178  105,  144 

Louisville,    etc.,    R.    R.    Co.  v. 

Gilbert,  12  S.  W.  Rep.  1018 

170,  223 
Louisville,    etc.,    R.    R.  Co.    v. 

Hedger,  9  Bush  (Ky.),  645 

117,  127 
Louisville,    etc.,  R.    R.  Co.    v. 

Meyer,  78  Ala.  597 
Louisville,  etc.,  R.  Co.  v.  Wil- 
son, 119 Ind.  352 
Lovering  v.  Buck  Md.  Coal  Co., 

54  Pa.  St.  291 
Lowe  V.  Booth,  13  Price,  329 
Lowell  Wire  Fence  Co.   v.  Sar- 
gent, 8  Allen  (Mass.),  189  _ 
Lowenberg    v.    Jones,   53    Miss. 

688  328,  343 

Lowry  v.  Russell,  8    Pick.  (25 

Mass.)  360  77,  83 


340 

65 

190 
100 

334 


TABLE  OF   CASES. 


SECTION 

Lucas  V.  Nookells,  4  Bingham, 

'31  359 

Lupe  V.  A.   &  P.  R.   R.  Co.,  2 

Mo.  App.  77  125 

Lutscher  v.  Coratoir  d'Esoorapte 

de   Paris,    L.    R.    12    B.    D. 

709  422 

Lyons  v.  Hill,  5  Am.  Law  Re"-. 

(N.  S.)  692  °      382 

L.  K.  M.  R.   &  L.   R.   Co.  v. 

Talbot,  47  Ark.  97 

106,  223,  226,  228 
L.  L.  G.  R.  R.  Co.  V.  Maris,  16 

Kansas,  333  412 

L.  R.  &  F.  &  S.  R.  R.  Co.  V. 

Hall,  32  Arkansas,  669  26 


SECTIOIf 


M. 


Macauley  v.  Furness  R.  R.  Co., 
21  W.  R.  140;  27  L.  T.  JST. 
S.  485  100 

Maekinnon  v.  Taylor,  Com.  Ca. 

514  243,  321 

Madan  v.  Sherrard,  73  N.  Y. 
329;  42  N.  Y.  Supr. 
Ct.  Rep.  353  15I 

Madhub  Chunden  Dey  v.  Law, 

13  Ben.  L.  R.  394  '     259 

Madison,  etc.,  R.  Co.  v.  Whitsel, 

11  Ind.  55  476 

Majrhee  v.  C.  &  A.  R.  R.  Co., 

45  N.  Y.  514  150,  197,  348 

Magnin  v.  Dinsmore,  6  J.  &  Sp. 

(N.  Y.)  248  41 

V.  Dinsmore,  56  N.  Y. 

168  144 

V.  Dinsmore,   62  N.    Y. 

35  39,  146 

V.  Dinsmore,   70  N.  Y. 
,      410  146 

Magruder  v.  Gage,  33  Md.  344        472 
Maguire  v.  Dinsmore,  62  N.  Y. 

35;  56  N.  Y.  168  129 

Mahomed  Israailjee  v.  B.  I.  S 
N.  Co.,  9  Cal.  W.  Rep.  C. 
R.  396  394 

Mahon  v.  The  Olive  Branch,  18 

La.  Ann.  Rep.,  107  273 

Major  (..  White,  7  Car.  &  P.  41      243 
Mallory  v.  Barrett,  1  Ex.  Smith, 

234  (C.  P.  ofN.  Y.)      328 
V.  Tioga  R.  R.  Co.,  39 
Barb.  488  7 

Malone  v.  B.  &  W.  R.  R.  Co., 
12  Gray,  388  121 


210 
206 
510 


Malpica  v.  McKown,  1  La.  Rep 

./^^^.  98 

Manchester  v.  Milne,   1   Abbott 

Bros.  115  26 

Manhattan  Oil  Co.  v.  C.  &  A.  R. 
R.  Co.,  5  Abb.  Pr.  N.  P.  (N. 
Y.)  289;  54N.  Y.  197;  S.  C. 
52  Barb.  (N.  Y.)  72  223,  348,  349 
Mann  v.  Birchard,  7  Am.  Law 
Reg.  (N.  S.)  702;  40  Vt.  326 

137,  325,  331 
Marcardier   v.    Chesapeake    Lis. 

Co.,  8  Cranch,  39 
Marialegue  v.  Louisiana  Ins.  Co., 

8  La.  Rep.  65 
Marine  Bank  v.  Fiske,  71  N.  Y, 
353 
V.  Wright,  46  Barb. 
45  ;  48  N.  Y.  1 

496,  510,  519,  521 
Mark  v.  Surrey,   29  Fed.  Rep. 

608  252 

Marsh  V.  Blythe,  1  McCord,  360; 

1  N.  &McC.170 
,,      .  •  212,  266,  269,  275 

Martin  v.  Am.  Ex.  Co.,  19  Wis. 

336  145,  350 

V.  Cole,  104  U.  S.  30  70 

V.  Great  Indian,  etc.,  Ry. 

Co.,  3  L.  R.  Ex.  9 
V.  Salem  Marine  Ins.  Co., 
2  Mass.  420 
Maryland   Ins.    Co.    v.   Levy,    7 

Cranch,  26 
Maryland  Ins.  Co.  v.  Ruden,   6 

Cranch,  338 
Maslin  V.  B.  &  O.  R.  R.  Co.,  14 

W.  Va.  Reps.  180 
Mason  v.  Grand  Trunk  Ry.  Co., 
37  U.  C.  Q.  B.  163 
V.  Great  Western  Ry.  Co., 
31  Up.  Can.  Q.  B.  73 
--    ,  480,  485 

Mather  v.  American  Ex.  Co.,  9 

Bissell,  293  113 

V.  American  Exp.   Co., 
2  Fed.  Rep.  49 
-  •     ,  37,  93,  101 

Matthews  v.  Poythress,  4  Ga.  287    453 
May  V.  Babcock,  4  Ohio,  334 

64,  65,  78 
Mayer  v.  Gr.  Tr.  Ry.  Co.,  31  U. 

C.  C.  P.  248  157,  414 

Mayhew  v.  Eames,  3  B.  &  C.  601     159 

McArthur   v.   Sears,    21   Wend. 

(N.  Y.)  190    188,  192,  193,  201, 

223,  266,  267 

477 


261 
299 
197 
419 
139 
386 


TABLE    OF   CASES. 


SECTION 

McCall  V.  Brock,  5   Strob.   (S. 

C.)  119  192,  223,  224 

McCance  v.  L.  &  N.  R.  R.  Co., 
3  H.  &  C.  343 ;  34  L.  J.  I^xch. 
39;  10  Jur.  N.  S.  1058;  12 
W.  R.  1086;  11  L.  T.  N.  S. 
426  34 

McCann  v.  B.  &  O.  R.  R.  Co., 

20  Md.  202  159,  339 

McCarthy  y.  T.   H.  &  I.  R.  R. 

Co.,  9'Mo.  App.  159  328 

McCauley  v.  Davidson,  13  Minn. 

162  471 

McClary  v.  Sioux  City,  etc.,  R. 

R.  Co.,  3  Neb.  44  196 

McClenaghan  v.  Brock,  5  Rich. 

Repts.   (S.  C.)  17  191,  192 

McClure  v.  Cox,  32  Ala.  617  105 

V.   Hammond,    1    Bay, 

99  275 

McConnell  v.  Norfolk,  etc.,  R. 
Co.,  9  Southeast  Rep.  (Va.) 
1006  328 

McCoy  V.  Erie,  etc.,  R.  R.  Co., 

42  Md.  498         2*2,  120,  155 
V.  Keokuk,   etc.,   R.    R. 

Co.,  44  la.  424  115,  217 

McCranie  v.  Wood,  24  ha.  Ann. 

Rep.  406  293 

McCready  i'.  Holmes,  VI.  Am. 
L.  R.  229  ;  Dist.  Ct.  U.  S.  for 
S.  Carolina  30 

McCresson  v.  Gr.  Tr.  Rv.  Co., 

23  U.  C.  C.  P.  107        '  410 

McCune  v.  B.  C.  R.  &  N.   R. 

Co.,  52  Iowa,  600  20,  21,  115 

McDaniel  v.  Chicago,   etc.,    R. 

Co.,  24  Iowa,  412  92,  115 

McEwen  u.  J.  M.  &  I.  R.  R. 

Co.,  33  Ind.  369  368,  397 

McFadden  v.  Mo.  Pac.  Ry.  Co., 

92  Mo.  343  69,  101,  125,  226 

McGregor  v.  Kilgore,  6  O.  358 

266,  352 
McGrevy  v.  Rathbone,  11  U.  C. 

(C.  P.)  186  364 

McHenry  v.  P.  W.  &  B.  R.  R.      ' 

Co.,  4  Harr.  (Del.)  448       192,  194 
Mcintosh  V.  Gastenhofer,  2  Robin- 
son (La.),  403  47 
Mclntyre  v.  Bowne,   1  Johns. 

(N.  Y.)  229  210 

McKay  v.  N.  Y.  Cent.,  etc., 
R.  R.  Co.,  50  Hun  (N.  1'.), 
563  33« 

McKinlay  v.  Morrish,  21   How. 

343  322 

478 


BECTION 

McLean  v.  Fleming,  25  L.  T.  N. 
S.  317;  2  L.  R.  H. 
L.  (S.  C.  App.)  128 

25,  30,  57,  359,  428,  429 
McManus   v.   Lancashire,   etc., 
Ry.  Co.,  4  H.  &  N.  328;  2  ib. 
693  217 

McMaster  v.    Walker,  8   L.  C. 

Rep.  171  400,  407 

McMillan  v.  Michigan  R.  R.  Co., 
16  Mich.  79 

122,  150,  151,  155,  328,  337,  343 
McNeil  V.  Tenth  Natl.  Bk.,  46 

N.  Y.  325  434 

McTyer  v.  Steele,  26  Ala.  487 

64,  176 
Hears  ??.  Waples,  4  Houston,  Del. 

62  514.  515 

Medley  V.  Hughes,  11  La.  Ann. 

Rep. 211  400 

Meech    v.    Smith,    7    Wendell, 

N.Y^315  175,183 

Mellor  V.  Chappie,  Lowndes  on 

General  Average,  p.  42  239 

Memphis,    etc.,    R.    R.    Co.    v. 

Reeves,  10  Wall.  176     190,  193,  194 
Mendelsohn  v.  The  Louisiana,  3 

Woods  Rep.  46  241,322 

Menzell  v.  R.  R.  Co.,  1  Dillon's 

C.  C.  531  223 

Mercantile  Ins.   Co.  v.    Chase,  1 

E.  D.  Smith,  N.  Y.  115      223,  333 
Merchant's,  etc.,  Bank  v.   Hew- 
itt, 3  Iowa,  93  1 
Merchant's  Banku.  Union  R.  R. 

Co.,  69  N.  Y.  373  496,  502 

Merchant's    Disp.    v.    Merriam, 

111  Ind.  5  414 

Merchant's  Dispatch  and  Trans. 
Co.  V.  Cornforth,  3  Col.  280 

108,  234,  261 
Merchant's  Disp.   Co.  v.  Smith, 

76  111.  542  188,  192,  201,  471 

Merchant's  Disp.  Trans.  Co.  v. 

Bolles,  80  111.  473  35,  348,  350 

Merchant's  Dispatch  Trans.  Co. 
V.  Leyser,  89  111.  43 

113,  150,  153,  223 
Merchant's  Disp.  Trans.    Co.  v. 

Moore,  88  111.  136        158,  329,  339 
Meredith  v.  Meigh,  2  El.  &  Bl. 

363  420 

Merian  v.  Funck,  4  Denio  (N. 

Y.),  110  364,365 

Merrick  v.  Webster,  3  Mich.  268     197 
Merrill  v.  Arey,  3  Ware  (U.  S. 

D.  C.)  215  223,  267,  272 


TABLE   OP   CASES. 


386 
9 


192 


207 


TIT         -11  .  -.^  SECTION 

Merrill  v.  Am.  Exp.  Co.,  62  N. 

H.  514 

V.  Grunnell,  30  N.  Y.  594 

Merritt  I'.  Earle,  29  N.  Y.  115- 

31  Barb.  (N.  Y.)  38  ' 

,,      ,  188,  192,  193 

Mershon  v.  Hobensack,  2  Zabr. 

N.  J.  380 
Messonier  v.  Union  Ins.   Co     1 

N.  &  McC.  (S.  C.)  155 
Meyer  v.  Dresser,  16  C.  B.  N.  S 
646,  657;  33  L.J.  C.p! 
289;  12W.  R.  983;  10 
L.  T.  N.   S.    612;    10 
Can.  L.  J.  (O.  S.)  308 

15,  84,  95,  180,  375,  383 
V.  Lemcke,  31  Ind.  258         383 
V.  Peck,  1  Tiffany  (28  N. 
Y.)  590;   33  Barb.  532 

14    25    31 
Meyerstein  v.  Barber,   L.  R  '4 
H.  L.  317 

425,  427,455,  456,  458,  466 
Michaels  v.   New  York   Central 

R.  R.  Co.,  30  N.  Y.  564  196 

Michigan  Central  R.  R.   Co.  v. 

Burrows,  33  Mich.  6    235,  237,  286 
Michigan  Central  R.  R.   Co.  v. 

Curtis,   80  111.  324  196,  236 

Michigan,  etc.,  R.  R.Co.  v.  Mc- 

Donough,  21  Mich.  165 
Michigan    Central   Ry.    Co.     v 

Phillips,  60  111.  190 
Michigan  Southern,  etc.,  R.    R. 

Co.  V.  Heaton,  3  7  Ind.  448 
Miller  V.    H.,    etc.,   St.   J.    R. 
Co.,    24  Hun   (N.Y.), 
607  _  '      57,  75 

V.  Savings  Association,  3 

Weekly  Notes,  480 
V.    Steam    Nav.    Co.,    13 

Barb.  (N.  Y.)  361 
V.  Steam  Nav.  Co.,  10  N. 

Y.  431  192,  223,  224 

V.  Tetherington,  6  H.  &N. 
278;  S.  C.  30  L.  J. 
Ex.  217;  affirmed  7  H. 
&  N.  954  239,  250 

Miner  v.  N.  &  W.  R.  R.  Co.,  32 

Conn.  91 
Mirabita   v.    Imperial    Ottoman 
Bank,    3    Ex.    Div.    164;    38 
Law  Times,  R.  N.  S.  597 
Miss.  C.  R.  R.  Co.  V.  Kennedy, 

41  Miss.   6  71 
Missouri  Pac.  Ry.  v.  Beeson,  30 
Kans.  298 


487 


124 


545 


49 


36 


217 


496 


223 


530 


202 


356 


529 


10 


68,  151 


Mitchell  y.  Ede,   11    Ad.  &  ;m'^"'*''' 
888  479,  491,  516 

V.   U.   S.   Ex.    Co.,   46 
Iowa,  214  47,  49 

Moakes  v.  Nicholson,   19  C.  B 

N.  S.  290 
Mobile  and  Ohio  R.  R.  Co.  v. 

Franks,  41  Miss.  494 
Mobile  and  Ohio  R.  R.  Co.  v. 

Weiner,  49  Miss.  725  124,  155 

Monell  V.   N.  C.  R.  R.  Co.,  67 

Barb.  (N.  Y.)  531  324 

Montgomery,   etc.,  R.  R.  Co.  v. 

Edmonds,  41  Ala.  667         223,   226 
Montgomery,   etc.,  R.  R.  Co.  v. 

Moore,  51  Ala.  394 
Montgomery      v.     Ship    Abbey 

Pratt,  6  La.  Ann.  Rep.  410 
Moore   v.    Am.    Trans.   Co.,   24 
Howard,  1 
V.  Evans,   14  Barb.   (N. 

Y.)  524  102    261,  325 

V.  Harris,  (1  L.  R.  P.  C. 
App.  Cas.  318);  45  L. 
J.  P.  C.  55;  34L.  T., 
N.  S.  519;  24  VV.  R. 
887  '  95,  394 

V.  Harris,   2   Quebec   L. 

Rep.  147 
V.  Metropolitan  Bank,  55 

N.  Y.  41 
V.  Mich.  Cen.  R.  R.  Co., 

3  Mich.  23 
V.  Robinson,  62  Ala.  537 

461,   467 
V.  Transportation  Co. ,  24 
How.  1 
Moosum    V.    Brit.    India  Steam 
Nav.  Co.,  8  Cal.  W.  R.  C.  R. 
35. 
Morgan  v.  Dibble,  29  Tex.  108 

TV,     .     .  194,  400 

Morianty  v.  Harnden's  Exp.,  1 

Daily  (N.  Y.),  227  "^  159 

Morrison  v.  Davis  &  Co.,  8  Har- 
ris (20  Pa.  St.),  171 

70,  185,  190,  196 
V.  McB'adden,    Penna. 

L.  T.  5  Clark,  23         202 
V.  P.  &  C.  Construction 
Co.,  44  Wis.  405 

140,  151,  221,  263 
More  wood  v.  Pollock,  1  E.  &  B 

743;   22L.  J.  Q.  B.  250  23  2 

Morse  v.  Brainerd,  8  Am.  Law 
Reg.  (U.  S.)  604;  41  Vt. 
550  323,  327,  328 

479 


45 


434 

223 


268 


203 


TABLE   OF   CASES. 


Morse  v.  Pesant,    2    Keyes    (N. 


V.  Stm.  T.  Raymond,  220 
(24  Car.  II.)  ;  1  Vent, 
190  ;  1  Kent's  Com.  p. 
302 ;  Abbot  on  Ship- 
ping, p.  iv.  c.vi.  sec.  2, 
p.  288  (10th  ed.) ;  1 
Kay  on  Shipping,  p.  41 1 

2C9,  294 
Morville  v.  Great  Northern  Ry. 
Co.,  16  Jur.  528;   21  L.J.  Q. 
B.  319  100 

Moseley  v.  Lord,  2  Conn.  389         176 
Mosher  v.  South.  Exp.  Co.,  38 

Ga.  37  112,329,337 

Moses  V.  B.  &  M.  R.  R.  Co.,  32 

N.H  523;  24N.H.71     127 
V.  Korris,  4N.  H.  304 

191,   201 
Moss  V.  Bvrom,  6  T.  R.  379  206 

Muddle  v'   Stride,   9   Car.  &  P. 

380  194 

Mulhirkey  i'.  P.  W.  &  B.  R.  R. 
Co.,  9  Phihi.  (D.  C.  of  Phila.) 
114  328 

JNIulligan  v.  Illinois  Cent.  R.  R. 
Co.,  36  Iowa,  181 

115,  150,  329,  339 
Munn  V.  Baker,  2  Stark.  226  100 

Murphv  V.  Creighton,  45  Iowa, 

179  '  381 

Murray  v.  Cume,  L.  R.  G  C.  P. 

24  243 

V.  Head,  3  Legal  News 

(Canada),  47  379 

V.  Lardner,  2  Wall.  110      453 
]\lurton  V.  Kingston  and  Montreal 
Forwarding  Co.,  18  Can.  Law 
Jour.  278  31 

Musehamp  v.  Lancaster  R.,  8  M. 

&  W.  421  325,329 

Muser  v.  Am.  Exp.  Co.   1   Fed. 
Rep.  (U.S.  C.C.)  382 

37,  144 
V.  Holland,  17Blatch.412 

103,  223 
Mynard  v.  Syracuse,  etc.,  R.  R. 
Co.,   71    N.  Y.    180;   7  Hun 
(N.  Y.),  399  93,  101,  129,  217 

M.  C,  R.R.  Co.  U.Boyd,  91  111. 

268  91 

M.  C.  R.  R.  Co.  V.  Burrows,  1 
Law  &  Eq.  Rep.  86  ;  33  Mich. 
6  328,  344 

]M.   C.   R.   R.    Co.   V.    Hale,    6 

Mich.  243,  257  122,  155,  412 

480 


3TI0N  " 

I  M.  C.  R.  R.  Co.  V.  Stockard,  11 
413  I      Heiskell  (Tenn.),  568 


329 
M.   C.   R.    R.   Co.'  i^.    Ward,    2 

Mich.  538  7,  122 

Mo.  Coal  &  Oil  Co.  V.  H.  St.  J. 

R.  R.  Co.,  35  Mo.   App.  84. 

323,  328,  329 
M.    D.   T.   Co.   r.   Joesting,    89 

111.  152  113,  153,  159,  161,  165 

M.  D.  T.  Co.  V.  Kahn,   76  111. 

529  9,  202 

M.  I).  T.  Co.  V.  Theilbar,  86  111. 

71  113,  153 

M.  &  G.  R.  R.  Co.  V.  Copeland, 

63  Ala.  219  329 

M.  &  G.  R.   R.  Co.   V.  Prewitt, 

46  Ala.  63  7 

M.   K.  R.  Co.  V.  Bovd,  91  111. 

268  '  91 

M.  &  O.  R.  R.  Co.  V.  Jarboe, 

41  Ala.  644  105,  261 

Mo.  Pac.  Rv.  Co.  v.  Fagan,  9  S. 

W.  Rep.  '749  70 

Mo.  Pac.   Ry.  Co.  v.  Young,   25 

Neb.  651  325 

M.  &  St.  P.  R.  R.  Co.  V.  Smith, 

74  111.  197  91,  329 

Mo.  Vallev  R.  R.  Co.  v.  Cald- 
well, 8  Kansas,  244  116,  252 
M.  &  W.  P.  R.  R.  Co.  V.  Moore, 

51  Ala.  394  49,  344,  346 

Mvrick  V.  M.  C.   R.  R.  Co.,  9 

Bissel's  Rep.  44  70 

Mytton  V.  Midland  R.  Co.,  4  II. 

&  N.  615  325 


N. 


N.  &  C.  R.  R.  Co.  w.  Estis,  7 

Heisk.  (Tenn.)  622  293,  294 

Nangatuck  R.  R.  Co.  v.  Beards- 
ley  Scvthe  Co.,  33  Conn. 
218        '  27 

Nangatuck  R.  R.  Co.  v.  Water- 
burv  Button  Co.,  24  Conn. 
483  S28 

Nashua  Lock  Co.  v.  W.  &  N.  R. 
Co.,  48  N.  H.  339;  10  Am. 
Law  Reg.  (N.  S.)  244  329 

Nashville,  etc.,  R.  R.  Co.  v. 
David,  6   Heisk.  (Tenn.)  261 

189,  190,  200 

Nashville,  etc.,  R.  R.  Co.  v. 
Jackson,  6  Heisk.  (Tenn.)  271 

135,  261,  263 

Nathans  v.  Giles,  5  Taunt,  558       496 


TABLE    OF    CASES. 


SECTION 

National   Bk.   of   Commerce   i'. 

Merchants'  Nat.  Bk.,  1  Otto, 

92  523,  525,  526 

Navigation    Co.    v.    Dwyer,    29 

Texas,  376  203 

Naylorw.  Battzell,  Taney's  C.  C. 

Dec.  55  98 

Neal  V.  Sanderson,  2  Sm.  &  M. 

(Miss.)  572  188,  201 

Nebenzahl  o.  Fargo,   22  N.  Y. 

St.  Repr.  231  414 

Neekey    v.   St.    Louis,   etc.,    R. 

Co.,  35  Mo.  App.  79  414 

Nelson  v.  H.  R.   R.  R.  Co.,  48 

N.  Y.  498  101,  159 

V.    National     Steamship 

Co.,  7  Ben.  340       103,  253 
V.    Stephenson,    5    Duer 

(N.  Y.),  538  48,  49,  56 

V.    ^Voodrutl■,     1     Black. 

156   .  44,  47,  49,  282 

Nemours?;.  Vance,  19  How.  162 

248,  269 
Nesbitt  V.  Lushington,  4  T.   R. 

783  "  291,  310 

Nevins  v.  Bay  State  Stm.  Co.,  4 

Bosw.  225  129 

Newberger  v.  Howard  &   Co.'s 

Ex.,   6  Philada.   (Fenn).   174 

145,  150 
New   Brunswick    S.    N.    Co.   v. 

Tiers,  24  N.  J.  (Law)  697  192 

New  Brunswick  S.  &  C.  Trans. 

Co.  V.  Tiers,  4  Zabr.  (N.  J.) 

697  193 

Newcomb   v.   Boston   &    Lowell 

R.  R.  Co.,  115  Mass.  233  528 

Newell  17.  Smith,  49   Vt.   255 

324,  325 
Newhall  V.  C.  P.  R.  R.,  51  Cal. 

345  533,  548 

N.  J.  R.  R.  &  Trans.  Co.  v.  P. 

R.  R.  Co.,  3  Dutcher  (N.  Y.), 

100  7,  20,  130 

N.  J.  S.  N.  Co.  V.  Merchants' 

Bank,  6  How.  344 

100,  103,  162,  163,  223 
Newman  v.  Smoker,  25  La.  Ann. 

Rep,  303  118,  150,  160 

New  Orleans,  etc.,  R.  R.  Co.  v. 

Faler,  58  Miss.  911  223,  226 

New  Orleans  Mutual  Ins.  Co.  v. 

New  Orleans,  etc.,  R.  R.  Co., 

20  La.  Ann.  Rep.  302  118,  223 

Newson  v.  Thornton,  6  East,  40     442 
New  York  Central  v.   Eby,   12 

Atl.  Rep.  482  252 

31 


New  York  Central  y.  H.  R.  R. 

R.    Co.,     20    Hun    (N.    Y.),  . 

39  230 

Nichol  &  Co.  V.  Castle,  9  Beav. 

H.  C.  Rep.  321  57,  61 

Nicholas  v.  New  York  Central, 

etc.,  R.  R.  Co.,  89  N.  Y.  370; 

4  Hun,  327 

77,  129,  190,  217,  234,  240 
Nichols  V.  De  Wolf,  1  R.  J.  I. 

277  177 

Nicholson  v.  Willan,  5  East,  507    100 
Nimter  v.  Pacific  R.  R.  Co.,  41 

Mo.  503  173 

Nitro-Phosphate,     etc.,    Co.    v. 

Dock  Co.,  9  L.  R.  Ch.  Div. 

503  189,  190 

Norman  v.  Phillips,  14  M.  &  W. 

277  472 

Norris  v.   Savannah    R.    Co.,   1 

South.  Rep.  475  190 

No.   Pa.    R.   Co,   V.    Bank,   123 

U.  S.  727  414 

Northern  Trans.  Co.  v.  McClary, 

66  111.  233  17 

Northrop  t,.  S.  B.  &  N.  Y.  R.  R. 

Co.,  3  Abb.  Dec.  386  343 

Notara   v.   Henderson,   L.   R.   5 

Q.  B.  346;   S.  C.  41  L.  J.  Q. 

B.  158  214,  286 

Nottebohil  V.  Richter,  L.  R.  18 

Q.  B.  D.  63  318 

Noves  V.  R.  &  B.  R.  R.  Co.,  27 

Vt.  110  323 

Nudd  V.  Wells,  11  Wise.  407  412 

Nugent  V.  Smith,  1  L.  R.  C.  P. 

Div.  19,  423  189,  191,  222 

Nutt  V.  Bourdieu,  1  T.  R.  323 

209,  210 
Nutting  V.  C.  R.  R.  Co.,  1  Gray 

(67  Mass.),  502  328,  331 


o. 


Oakley  v.  Portsmouth,  etc.,  Co., 

25  L.  J.  Ex,  99  190 

V.  Portsmouth,  etc, 
Packet  Co.,  11  Exch. 
617  192 

O'Brien  v.  Gilchrist,  34  Me,  554 

14,  32,  46,  48 
O' Bryan  v.  Kinney,  74  Mo,  125 

65,  151 
Ochs  V.  Price,  6  Heiskell,  483         472 
Ogden    V.    Barker,     18    Johnson 
(N.  Y.),  87  297 

481 


TABLE   OF   CASES. 


329 


114 


357 


135 


SECTION 

Ofrdftisbiirnr,  etc.,  R.  R.   Co.  v. 

Pratt,  22  Wall.  133  220 

Ogg  V.  Shuter,  L.  R.  1  C.  T. 

Div.  159  483,  528 

Oliio.  etc.,  R.  R.  Co.  V.  Dunbar, 

20  111.623  217,220 

Ohio  &  iM.  R.  Co.  V.  Emrlch,  24 

111.  App.  245 
Ohio,   etc.,  R.   Co.  v.  Selby,  47 

Ind.  471 
Ohio,  etc.,  R.  R.  Co.  r.  Tohe, 

51  Ind.  181  300,  301 

Ohrloii'  V.  Briscall,  L  R.  1  P.  C. 
231;  S.  C.  35  L.  J.  P.  C.  63 

242,  243,  251 
Oliver   v.  Great  Western    Rail- 
way Co.,  28  U.   Can. 
C.  P.  143  167,  429 

V.    Moore,    12    Hei.skell 

(Tenn.),  481,482    479,491 
V.  Muggeride,  5  Can.  Law 
Jour.  (O.  S.)  166 
Olwell  V.  Adams  E.\.  Co.,  1  Cent. 

L.  J.  186 
Ontario  Bank  v.  Hanlon,  23  Hun 

(N.  Y.),  283 
Oppenheinier   &    Co.   v.  U.    S. 

Exp.  Co.,  69  111.  62         37,  39,  143 
Orange  Co.   Bank   v.  Brown,   9 

Wendell  (N.  Y.),  85 
Ormsby  v.  U.  P.  R.  R.   Co.,  2 
McCrary,    48;    4    Fed.    Rep. 
(U.  S.  C.  C.)  170,  706 

103,  157,  390 
OrndofF  v.  Adams  Exp.  Co.,  3 

Bush  (Kv.),  194 
O'Rourke  V.  Ry.  Co.,  23  U.  C. 
Q.'B.  427 
?;.  TheC,  B.&  Q.  R. 

Co.,  44  Iowa,  526 
V,  Tons  of  Coal,  1  Fed. 
Rep.  623 
Ortt  V.  Minneapolis,  etc.,  R.  Co., 

36  Minn.  396  328,  339 

Overdofi"  v.  Adams  Ex.   Co.,  3 

Bush,  194  117 

Owen  V.  Johnson,  2  Ohio  St.  142     382 
Oxley  V.  St.  Louis,  etc.,  R.   R. 

Co.,  65  Mo.  629      125,218,238,395 


P. 


Packard  v.  Taylor,  35  Ark.  402 

192,  343 
Palmer  v.  Grand  Junction   Rv. 

Co.,  4  M.  &  W.  749        217 

482 


63 


38 


38 


151 


344 


65 


BECTIOlf 

Palmer  v.  Holland,  51  N.  Y.  416     325 
V.  Lorillard,  16  Johnson 

(N.  Y.),  348  269,  297 

V.  Naylor,  23  L.  J.  Ex. 
323  291 

Pardee  v.  Drew,  25  Wend.  (N. 

Y.)  459  ^  39 

Pardingtonv.  South  Wales  R' way 
Co.,  38  Eng.  L.  &  Eq.  Rep'. 
432  217 

Park  V.  Porter,  2  Robinson,  342      491 
Parker  v.  Flagg,  26  Maine,  181       223 
V.  Patrick,  5  T.  R.  175        533 
Parmelee  v.  Lowitz,.  74  111.  116    10,  35 
y.  West.  Trans.  Co.,  26 

Wis.  439  329 

Parrison  v.  Memphis  Ins.  Co.,  19 

How.  312  271 

Parsons  v.  Hardy,  14  Wend.  (N. 

Y.)  215  190 

v.   ]\Jonteath,    13   Barb. 

(N.  Y.)353     192,  223,  224 
Patapseo  Co.  Ins.  Co.  v.  Coulter, 

3  Pet.  222  205 

Paterson  i'.  Dakin,  31  Fed.  Rep. 

682  73 

Paton  V.  Bliss,  1  Bissell,  15  192 

Patten  v.  Thompson,  5  M.  &  S. 

350  491 

Patterson  v.  Clvde,   67  Pa.    St. 

500  79,  102.  162,  165,  227 

Pattison   v.   Mills,  1   Dow.  &  C. 

342;  2  Blight  (N.  S.),  519         225 
Patton  V.  McGrath,   Dudley  (S. 

C),  159  134,  191,  192,  223 

Peck  V.  Ritcher,  66  Mo.  114  480 

?;.  Weeks,  34  Conn.  145 

109,  194 
Pecks    V.    Dinsmore,    4    Porter 

(Ala.),  212  14,  64,  159 

Peebles  v.  B.  &  A.  R.  R.  Co., 

112  Mass.  98  32 

Peet  u.  C.  &  N.  W.  Ry.  Co., 
20   Wis.    594;    19    Wis,    118 

325,  332 
Peixotti  V.  McLaughlin,  1  Strob. 

468  2 

Pemberton     v.    N.    Y.    Central 

R.  R.  Co.,  104  Mass.  144    121,  223 
Pendall   v.  Rench,   4    McLeans, 

259  169,  171 

Pender  v.  Robbins,  6  Jones,  207       36 
Pendergast   r.  Adams  Ex.   Co., 

101  Mass.  120  328,  340 

Penn  v.  Butfalo,  etc.,  R.  R.  Co., 
49  N.  Y.  204  ;  3  Laws  (N.  Y.), 
443  217,  257 


TABLE   OF   CASES. 


Penna.  R.   R.  Co.  v.  Butler,  57 

Pa.  St.  335  133 

Penna.   Co.  v.  Fairchild,  69  111. 

260  91,  329 

Penna.  R.  R.   Co.   v.  Fries,  87 

Pa.  St.  234,  378 

133,  191,  223,  224 
Penna.  R.  R.  Co.  v.  Henderson, 

51  Pa.  St.  315  133 

Penna.    Co.    v.  Holderman,    69 

Ind. 18  411 

Penna.  R.  R.  Co.  v.  McCloskey, 

23  Pa.  St.  526  133 

Penna.  R.  R.  Co.  v.  Rapordon, 

119  Pa.  St.  577  133 

Pennewill    v.    CuUen,    5    Harr. 

(Del.)  238  188,  191 

People's    Nat.  Bk.   v.   Stewart, 

3  Pugs.  &  Bur.  (New  Bruns- 
wick), 268  482,  485,  530 

Perkins  v.  Hill,  1  Sprague,  123      378 
V.  Hill,   2  Woodbury  & 
Minoto,  AV.  S.  C."C., 
158  73 

V.  P.  S.  &  R.  R.  Co., 

47  Me.  573  323,  828 

Perret  v.  Sauvinet,   2  La.  Ann. 

Rep.  559  364 

Perry    v.  Thompson,    98    Mass. 

249  121,  151,  152 

Peters   v.  Warren   Ins.  Co.,   14 

Pet.  99  212,  269 

Petitt  V.  First  Nat.  Bk.  Memphis, 

4  Bush  (Ky.),  334  496,  510 
Petrie  v.  Heller,   35  Fed.  Rep. 

310  64 

Phifer    V.    C.    C.    R.    R.,    89 

N.  C.  311  131 

Phila.  &  R.  R.  R.  Co.  V.  Bar- 
nard, 3  Ben.  39  364 
Phila.  &  R.  R.  R.  Co.  v.  Beck, 

125  Pa.  620  335 

P.  R.  R.  Co.  V.  BeiTy,  18P.  F. 

Sm.  (Pa.)  272  323,  327 

Philadelphia,    etc.,     R.    Co.     v. 

Harper,  29  Md.  330  293,  295 

P.  &  R.  R.  R.  Co.  V.  Ramsey, 

8  Norrls  (Pa.),  474  327,  332 

P.  C.   &   St.   L.  R.   R.  Co.   V. 

Barrett,  36    Ohio    State,    448 

81,  132,  156 
P.  C.  &  St.  L.  R.  Co.  V.  Morton, 

61  Ind.  539  328 

Philleo   V.    Sanford,    17   Texas, 

227  10 

Phillips    V.    Bingham,    26    Ga. 

617  197 


Phillips  V.  Clark,  5  Jur.  (N.  S.) 

1081;  2  C.  B.  N.  S. 

156;    S.    C,    3  Jur. 

N.  S.   467;   26  L.  J. 

C.  P.  166  100,  252 

V.  Earle,      8    Pickering 

■    (25  Mass.),  182  35,  37 

V.  N.    C.    R.    R.    Co., 

78  N.  C.  294  328 

Phoenix  Ins.  Co.  v.  E.  &  W.  T. 

Co.,  10  Biss.  18  269 

Phyn  I'.  Royal  Exch.  Ins.   Co., 

7  T.  R.  505  205,  207 

Pickering  v.  Buck,  15  East,  44       470 
V.  Barkley,        Styles, 
132  ;   S.  C.  2  Rail, 
Abr.  248 

266,  269,  271,  292 
Pickernel  v.  Janbei-ry,  3  F.  &  F. 

C.  P.  Eng.  217  179 

Piero  i;.  Windsor,  2  Clifford,  18      246 
Pietro  G.,  38  Fed.  Rep.  148  356 

Pilgreen  v.  State,  71  Ala.  368         382 
Pindell   v.    St.    Louis,   etc.,    R. 

Co.,  34  Mo.  App.  675  398 

Pipon  V.  Cope,  1  Camp.  434 

206,  211 
Pitre  V.  Offut,  21  La.  Ann.  Rep. 

679  79 

Pittsburgh,  etc.,  R.    R.    Co.  v. 

Hallowell,  65  Ind.  188         294,  315 
Pittsburgh,    etc.,   R.   R.   Co.   v. 
liazen,  84  111.  36 

190,  196,  235,  314 
Place  V.  Union  Express  Co.,  2 

Hilt.  19  391 

Plaisted  v.  Boston,  etc.,  S.  Nav. 

Co.,  27  Me.  132  212,  223,  269 

Pollard  V.  Vinton,  105  U.  S.  7 

167,  428,  432,  433 
Pope  V.  Nickerson,  3  Story  Rep. 

465  97 

Porcher  v.  Northeastern  R.  R. 

Co.,  14  Rich.  (S.  C.)  181     293,  296 
Porter  y.  C.  &  N.  W.  R.  R.  Co., 

20  Iowa,  73  47 

V.  Robinson,  2  Juta'sRep. 
(Cape  Good  Hope,  E. 
D.)  16  45 

I'.  Southern  Ex.  Co.,  4  S. 
C.  135  134,  392 

Porteus  V.  Watney,  L.  R.  3  Q. 

B.  D.  534  74 

Porterfield  v.  Brooks,  8  Hump. 

(Tenn.)  497  221 

V.    Humphreys,       8 

Hump.  (Tenn.)  497     9 
483 


TABLE   OF   CASES. 


SECTION 

Potter  1).  Sharp,  24  Hun  (N.  Y.), 

179  129,  256 

Poucher  v.  N.  Y.  C.  R.  Co.,  49 

N.  Y.  263  129 

Powell V. Mills,  1  George  (Miss.), 

231  10 

V.  Mills,  8  George  (Miss.), 

691  10 

V.  Mills,  37  Miss.  691  221 

V.  Pennsylvania     R.     R. 
Co.,  32  Pa.  St.  414 

133,  217,  220 
Powers  V.  Davenport,  7  Blackf. 

(Ind.)  497  197 

Pratt  V.  0.  &  L.  C.  R.  R.  Co., 

102  Mass    557  152,  220 

V.  Parkman,  24  Pick.  42 

479,  516 
Prentice  r.  Decker,  49  Barb.  21  129 
Price  V.   Hartshorne,   44  N.   Y. 

94  100,  129,  184,  190 

V.  Powell,  3  N.  Y.  322  49 

Proprietors   Ti-ent    Nav.   Co.  v. 

Wood,  3  Esp.  127  192 

Providence,  etc..  Steamship  Co. 
V.  Hill  Mfg.  Co.,  109  U.  S. 
578  233 

Pruitt  r.   H.    &  St.   Jo.   R.   R. 

Co.,  62  Mo.  527  170,  172,  190 

Piircell  V.  S.  Ex.  Co.,  34  Georgia, 

315  67,  112 

Putnam    v.    Furnam,    71     New 

York,  590  412,  413 

Putnam   v.    Tillotson,   18  Mete. 

(54  Mass.)  517  166,  169 


Q. 


Quimby  v.  Vanderbilt,  17  N.  Y. 

306  327 

Quintard  v.  Bacon,  99  Mass.  185     420 


R. 


R.  R.  Co.  I'.  Androscoggin  Mills, 
22  Wall.  594 

325,  327,  345 
V.  Fries,  192 

V.  Lockwood,  1 7  Wall. 

357      102,103,132,133 
V.  Mf.    Co.,  16  Wall. 
318,  324 

103,  157,  323,  328 
V.  Northara,  2  Ben.  1 

356,  400 
484 


bection 
R.  R.  Co.  V.  Pratt,  22  Wall.  123 

103,  323,  325,  327,  328,  345 
Railroad    Co.     v.     Reeves,     10 
Wallace  (U.  S.   S.  C),   176 

174,  196 
Raisted  v.  Boston,  etc.,  S.  Nav. 

Co.,  27  Me.  132 
Randall   v.    Dabney,    105    Mass. 
437  ' 
V.   Smith,  63    Me.    105 


192 
63 
84 

100 


Ranger  v.  G.  W.  R.  R.  Co.,  1 

Railway  &  Canal  Cas.  1 
Rawles  v.  Deshler,  3  Keys  (N. 

Y.),  572  '       166,  170 

Rawson   v.    Holland,   59   N.   Y. 

611  328,  343 

Read  v.  Spaulding,  5  Bosw.  395 
(Supr.  Ct.  N.  Y.,  30 
N.  Y.  630) 
•  8,  190,  194,  196,  200 
V.  St.  Louis,  Kansas  Citv, 
etc.,  R.  R.  Co.,  60 
Mo.  199  234,  313 

Reaves  v.  Waterman,  2  Spears' 

Rep.  S.  C.  197  192,  272 

Redpath  v.  Vaughan,  52  Barb. 
(N.  Y.)  489,  affirmed  48  N. 
Y.  655  269 

Reed  v.  U.  S.  Express  Co.,  48 

N.  Y.  462  337 

Regan  v.  Grand  Trunk  R.  Co., 

61  N.  H,  579  335 

Reineman  v.  C.  C.  &  B.  R.  R. 

Co.,  51  Iowa,  338  410 

Relf  V.  Rapp,  3  W.  &  S.  (Pa.) 

21  35    39 

Relyea  v.    N.  H.   Rolling   Mill 

Co.,  42  Conn.  579  533 

Rennie  v.  Northern  Ry.  Co.,  27 

U.  C.  C.  P.  153  340 

Reno  V.   Hogan,  12  B.  Monroe 

(Ky.),  63  117,  252 

Reynolds  v.  Jex,  7  B.  &  S.  86 ; 

34  L.  J.  Q.  B.  251  179,  363 

Rhodes  v.  L.  &  N.  R.  R.  Co.,  9 

Bush  (Ky.),  688  117,  220 

Rice  V.  Austin,  17  Mass.  197  491 

V.  I.  &  St.    L.  R.  R.  Co., 
3  Mo.  App.   Rep.   27 

23,  377 
V.  K.  P.  R.  R.  Co.,  63  Mo. 

314  125 

Rich  V.  Lambert,  12  How.  347  . 

269,  273 
Richards  v.  Doe,  100  Mass.  524 

47,  49 


TABLE   OF   CASES. 


SECTION  ] 

Richards  v.  Haunen,  1  Fed.  Rep. 
54 ;  Lawson  on 
Contracts  of  Car- 
riers, p.  401 

100,  267,  273,  321 
V.  Westcott,  2  Bosworth 

(N.  Y.),  589  10,  39 

Richardson  v.  Maine,  etc.,  Ins. 
Co.,  6  Mass. 
102  306 

V.  Northeastern  Ry. 
Co.,  L.  R.  7 
C.  P.  75  221 

V.  Smith,  33  Ga. 
(Supplement) 
95  461,467  1 

V.    The    Charles    P. 
Chouteau,    37 
Fed.  Rep.  532     347 
Richmond  v.   Union    Steamboat 

Co.,  87  N.  Y.  240  398,  409 

Rickerson,  etc.,  Co.  v.  Grand 
Rapids,  etc.,  Co.,  32  Am.  & 
Eng.  Ry.  Cases,  487  337 

Ricketts  V.  B.  &  O.  R.  R.  Co., 
61  Barb.  18;  59  N.  Y.  637 

63,  65,  339 
Riley  v.  Home,  5  Bing.  217  100 

Ritz    V.    Penna.    R.    R.    Co.,   3 

Phila.  82  190,  217 

Rixtord  v.  Smith,  52  N.  H.  355 

127,  217 
Robbins  v.  Welsh,  9  Phila.  (Pa.) 

409 
Roberts   v.   Riley,  15  La.  Ann. 

Rep.  103 
Robertson  v.    Ewer,  1  T.  R.  127 
V.    Kennedy,   2   Dana 

(Ky.),  430  9,  188 

Robinson   v.  Memphis,   etc.,  R. 

Co.,  16  Fed.  Rep. 

57  -,   9    Fed.    Rep. 

129  167,  432,  436 

V.  M.   D.  T.   Co.,  45 

Iowa,  470 

71,  91,  150,  165,  231,  327 

I'.  Southwestern     Ry. 

Co.,19C.  B.  N. 

S.    51  ;    11  Jur. 

N.  S.  390;34L. 

J. C.  P.  234;  13 

W.  R.  660  36 

Rochereau   v.   Bark    "  Hausa," 

14  La.  Ann.  Rep.  431  243,  252 

Rodger  v.  The  Comptoir  d'  Es- 
compte  de  Paris,  L.  R.  2  P. 
C.  393  539 


356 

118 
206 


SECTION 

Rodo-ers  v.    Phillips,   40   N.  Y. 

5f9  413,  420 

Rodocanachi  v.  Milburne,  L.  R. 

18  Q.  B.  D.  67  73 

Rotrers  v.  Great  Western  R'way. 
°  Co.,  16  Up.  Can.  Q. 

B.  389  337,  339,  472 

V.  Murray,  3  Bosw.  357       285 
V.  Roberts,  27  La.  Ann. 

Rep. 85  68 

V.  AV heeler,  6    Lansing, 

N.  Y.  420  343 

Rohl  V.  Parr,  1  Esp.  445         272,  299 
Rome   R.   R.  v.   Sloan,  39  Ga. 

636  327 

V.  Sullivan,  25  Ga. 

228  329,  343 

Root  V.  G.  W.  R.  Co.,  45  N.  Y. 

524  323,  325,  327,  328,  343 

Roscow  V.  Corson,  8  Taunt.  684     206 
Rose  V.  Des  Moines  Valley  R. 

Co.,  39  Iowa,  246  115 

Rosenthal  v.  Dessan,  1 1  Hun,  49 

533,  536 
Ross  V.  Hunter,  4  T.  R.  33     206,  210 
V.  R.  R.  Co.,  49  Vt.  364        281 
Rowland    v.   Miln,  2   Hilt.  (N. 

Y.)  150  378 

Rowley  v.  Bigelow,   12  Picker- 
ing, 307  18,  436,  534 
Royal  Canadian  Bank  v.  Grand 
trunk  Ry.  Co.,  23  U,  C.  C. 
P.  Rep.  225  1 
Ruck  V.  Hatfield,  5  B.  &  Aid. 

632  465 

Russell  V.  Livingston,    19   Bar- 
bour,  346  8 
V.  Niemann,   17    C.  B. 

N.  S.  163  73 

V.  Niemann,  34  L.  J. 
C.  P.  10;  S.  C.  10 
L.  T.  786  ;  13  W. 
R.  93  292 

Rvburg  V.  Snell,  2  Wash.  C.  C. 

'294  491 

Ryder    i'.     Hall,    7    Allen    (89 
Mass.),  456  25,  167 


Sach  V.   Ford,    13  C.   B.   N.  S. 

90  243 

Sa<rer  v.  Portsmouth,  etc.,  R.  R. 

Co.,  31  Me.  228    '  119,  199 

Salisbury   v.   Harnden   Ex.  Co., 

10  R.'l.  244  293 

485 


TABLE    OF   CASES. 


SECTION 

Salomans  v.  Lissen,  2  T.  R.  681     537 
Saltus  V.  Everett,  20  Wend.  268 

167,  460,  461,  467,  470 
Sampson   v.   Gazzam,   6    Porter 

(A.la.),  123  105,  223 

V.  Lindsay,    6  Porter 

(Ala.),  123  78,  271 

Samuel  v.  Edmonstone,  1  Low. 

Can.  Jur.  89  100 

Sanderaan  v.  Scurr,  2  L.  R.  Q. 

B.  98  244,  252 

Sanders  v.  ]\Iaelean,  11  Q.  B. 
Div.  327 

421,  423,  455,  459 
V.  Vanzeller,  4  Q.  B. 

260      *  441 

V.   Young,       1       Head 

(Tenn.),  219  .10 

Sanderson  v.  Lamberton,  6  Bin- 

ney  (Pa.),  128  163 

SandV  V.  C.  &  N.  W.  R.  R.  Co., 

30  "la.  420  228 

Sanford  v.  Housatonic  R.  R.  Co., 

65  Mass.  155  395 

Sargent  v.  Morris,  3  B.  &  Aid. 

277  441 

Satterlee   v.    Groat,  1    "Wendell 

(N.  Y.),  272  171 

Saunders,  v.  Bartlett,    12    Ileis- 

kell  (Tenn.),  316  479,  491 

Savannah,  etc.,  R.  R.  Co.  v. 
Collins,  3  Southeast  Rep.  416 

21,  69 
Savings  Bank  v.  R.  Co.,  20  Kan. 

519  168 

Say  ward  v.  Stevens,  3  Gray  (69 

Mass.),  97  64,  85,  250 

Scaife  V.  Tarrant,  23  W.  R.  469  ; 
2  Cent.  L.  J.  383  ;  aflirmed 
23  W.  R.  840 ;  2  Cent.  L.  J. 
605  184 

Schieflelin  v.  Harvey,  6  Johns. 
170;   S.  C.  Anton''s  N.  P.  76 

194,  261,  272,  294,  320 
Schlesinger  v.   Stratton,  9  R.  I. 

578     "  471 

Schmidt  v.  Royal  Mail  S.  S.  Co., 
45  L.  J.  Q.  B.  Div. 
646  223 

V.  St'm'p  Penn'a,  7  W. 

N.  C.  98  533 

School  Dist.  V.  B.   H.  &  E.  R. 

R.  Co.,  102  Mass.  552  121 

Scholes  V.  Ackerland,  1 5  Illinois, 

474  400 

Schr.  Leonidas,  Olcott  (D.  C. 
N.  Y.),  12  183 

486 


Schuokards  v.  Hall,  36  Md.  590      527 
Schulter  v.    Adams   Ex.   Co.,    6 

Cent.  L.  J.  175  345 

Schultz   V.    The    Pietro    G.,   40 

Fed.  Rep.  497  58 

Schumacher  v.  Eby,  24  Pa.  St. 

521  633 

Schuster  v.  McKellar,  26  L.  J. 

Q.  B.  281  465 

Schutter  v.   Adams  Ex.  Co.,   5 

Mo.  App.  316  328,  329 

Schwartz  v.  Dwver,  3  P.  F.  S. 

335  "  473 

Scothorn  v.  S.  S.  R.  Co.,  8  Ex. 

341  325 

Scott  V.  Hescroff,  5  L.  Can.  Rep. 

274  400 

V.  Libbv,   2   Johnson    (X. 

Y.),"336  297 

V.  London  Dock  Co.,  34  L 

J.  Ex.  220  215 

Scoville    V.    Griflith,   12    N.   Y. 

(Ct.  of  App.)  509  64,  166 

Scranton  v.   Farmers'  Bank,  24 

N.  Y.  424  301 

Scripture  v.  Lowell  Ins.  Co.,  10 

Cush.  (Mass.)  356  225 

Scruggs  V.  B,  &  O.  R.  R.  Co.,  5 

McCreary,  590  103,  223 

Seaman  v.  Adler,  37  Fed.  Rep. 

268  204 

Sears  v.  Wingate,  3  Allen  (85 

Mass.),  103  15,  167,  180,  432 

Securitv  Bank  of  Minn.  v.  Lutt- 

gen,  29  Minn.  363  65,  482,  485 

Sedgwick     v.     Cottingham,     54 

Iowa,   512  471 

Seligman    v.    Armijo,     1    New 

Mexico,  459  9,  128,  201,  294 

Selma  &  Meriden  R.  R.  Co.  v. 

Butts,  43  Ala.  385  7 

:  Sewell  V.  Burdick,  L.  R.  10  H. 

L.  74  442 

Seymour  v.  Newton,  105  Mass. 

275  537 

Shackleford    v.   Wilcox,    9    La. 

Ann.  Rep.  33  364 

Shatzell    V.    Hart,    2    Marshall 

(Ky.),  191  25 

Shaw  V.  Gardner,    12  Gray  (78 

]\Iass.)  488  65,  227,  404 

V.  Merchants'  Nat.  Bk.  of 
St.  L.,  8  W.  N.  C. 
(Penna.)  221  63 

V.  The  R.  R.  Co.,  101  U. 

S.  557  453,  454 

V.  Thompson,    Olcott,  144     364 


TABLE   OF   CASES. 


'  SECTION 

Shaw  V.  Y.  N.  M.  R.  Co.,  13 
Q.  B.  347  ;  18  L.  J. 
Q.  B.  181  ;  13  Jur. 
385;  6  Railway  Cas. 
87  100,  -256,  264 

Shelton  V.  M.  D.  T.  Co.,  59  N. 

Y.  258  165 

Shepard  v.  Heineken,   2  Sweeny 

(N.  Y.),  525  397 

Shepherd  r.  Harrison,    L.   R.   5 

H.  L.  116;  L.  R.  4 

Q.  B.  493  ;  L.  R.  4 

Q.  B. 196     485,  528,  528 

V.  Naylor,  5  Gray,  591 

32,  58 
Sherman  v.  Hudson  R.  Co.,  64 

N.  Y.  254  342 

V.  Inman  S.  S.  Co.,  26 

Hun    (N.  Y.),    107     283 
V.  Penna   R.    R-    Co., 

8  W.  N.  C.  269  228 

V.  Wells,    28    Barbour 

(N.  Y.),  403  8 

Shieffelin   v.  Harvey,  6    Johns. 

CN.Y.)  170  194 

Shiff  V.  N.  Y.  C.  &  H.  R.  R. 

Co.,  16  Hun,  278  66 

Ship    Howard   v.    Wissman,    18 

Howard,  231  48,  281 

Ship    Rappahannock    v.  Wood- 
ruff, 11  La.  Ann.  Rep.  698  49 
Short'U  Simpson,  L.  R.  1   C.  P. 

248  '^'^ 

Shriver  v.  R.  C.  &  St.    Paul  R. 

R.  Co.,  24  Minn.  506  123,  347 

Shroeiter  v.  H.  R.  R.  R.  Co.,  5 

Duer  (N.  Y.  Supr.  Ct.),  55  323 
Silver  V.  Hall,  2  Mo.  App.  557  192 
Simkins  u.  N.  &  L.    Steamboat 

Co.,  11  Cush.  Mass.  102  336 

Simmons  v.  G.  W.   Ry.  Co.,  2 

C.  B.  (N.  8.)  620       151 
V.  Law,  8  Bosw.  213  ; 
3  Keys  (40  N.  Y.), 
217  64,  79,  102 

Simon  V.  The  Fung  Shuey,  21  La. 

Ann.  Rep.  363  US,  261 

Sino-leton  v.  Hilliard,   1    Strobt. 

(S.  C.)  203  134,  228 

Siordet  v.  Hall,  4  Bing.  607  192 

Sioux  City  &  Pac.  R.  Co.  v.  First 
Nat.  Bk.  of  Fremont,  10  Ne- 
braska, 556  168,  434 
Sisson  V.  Cleveland,  etc.,  R.  R. 

Co.,  14  Mich.  489  258 

630    Quarter    Casks    of    Sherry 
Wine,  14  Blatch.  (C.  C.)  517     251 


144 
176 

39 

100 


472 


135 


131 


220 


SECTION 

Sioerds   v.  Luscombe,  16  East, 
201  306,  308 

Skillino-  V.  Bollman,  6  Mo.  App. 

76     °  455,  466,  496 

Skinner  v.  Hall,  60  Me.  477  328 

Skipwith  V.  G.  W.   R.   Co.,  59 
L.  T.  N.  S.  520 

Shirk  V.  Broom,  7  La.  Ann.  337 

Sleat  V.  Tagg,  5  Barn.  &  Alder- 
son,  342 

Slim  V.  Great  Northern  R.  R. 
Co.,  14  C.  B.  647 

Slocum  V.  Fairchild,  7  Hill,  292  ; 
19  Wend.  (N.Y.)  329  ;  aftlrmed 
7Hill(N.Y.),  292        129,268,269 

Smith  V.  Brazelton,     1      Heisk. 

(Tenn.)  44  293 

V.  Horn,  2  Moore,  18  ;  S. 

C.  8  Taunt.  144  100,  194 

V.  Hudson,    34  L.   J.   Q. 

B.  145 
V.  Louisville,   etc.,  R.  R. 

Co.,  86  Tenn.  198 
V.  N.  C.  R.  R.  Co.,  64  N. 

C.  235 
V.  New  Haven,  etc.,  R.  R. 

Co.,  12  Allen  (Mass.), 
531 
V.  New  York  Central  R. 
R.  Co.,  29  Barb.  (N. 
Y.)  132;  affirmed  24 
N.  Y.  222;  43  Barb. 
225  238,  328,  343,  346 

V.  Scott,   4  Taunt.   125 

212,  213 

V.  Shepherd,      Abb.       on 

Shipping,  pp.  235,  287, 

291.,     ch.     iv.,    sec    2, 

(10th  ed.)  269,294 

V.  Tregarthen,   56    L.    J. 

Q.  B.  437  16 

V.  Wright,    1   Carnes,   43 

249,  250 
Smurthwaite  v.  Wilkins,   11    C. 

B.  (N.  S.)  842  356,  442 

Smyrl  v.  Niolan,  2  Bail.   (S.  C.) 

421  191 

Snider  v.    Adams   Exp.  Co.,   63 

Mo.  376  125,  150,  151,  337 

Snow  V.  Ind.,   etc.,  R    Co.,   109 

Ind.  422  333,  336 

S.  &'N.  A.   R.  R.   V.  Henlein, 
56  Ala.  368  ;   52  Ala.  606 

105,  144,  217,  238 
Soares  v.    Thomson,    7     Taunt.   , 

627  206 

V.  Thornton,  7  Taunt.  627     211 

487 


TABLE   OF   CASES. 


SECTION 

Soule  V.  Rorlocanaclii,   1    Newb. 

Adm.  504  286 

Soumet    V.    Nat,    Ex.    Co.,     G6 

Barb.  (N.  Y.)  284  loO,  165 

South,   etc.,   Alabama,   etc.,    K. 

R.    Co.  V.    Henlein,   52    Alu. 

606  254 

South    &   North     Ahibama     R. 

R.    Co.    V.    Wilson,     78    Ala. 

587  105 

Southcote's  Case,  4  Rep.  84  100 

Southern  Exp.  Co.  v.  Armstead, 

50  Ala.  350  105,  142 

Southern  Exp.  Co  v.  Barnes,  36 

Ga.  532  112,  396 

Southern  p]xp.  Co.  v.    Caperton, 

44  Ala.  101  105,  389,  393 

Southern  Exp.  Co.  v.  Craft,   49 

Miss.  480  17 

Southern  Exp.  Co.  v.  Crook,  44 

Ala.  468 

8,  22,  35,  105.  142.  144,  148 
Southern  Exp.  Co.  v.   Dickson, 

4  Otto,  549  414 
Southern  Exp.  Co.  v.  Frink,  67 

Ga.  201  8 

Southern  Exp.  Co.   v.  Hess,   53 

Ala.  19  8,  17,  346,  347 

Soutiiern  Exp.  Co.  v.  Kaufman, 

12  Heisk.  (Tenn.)  161  226 

Southern  Exp.  Co.  v.  Moon,   10 

George  (Miss.),  822  155 

Southern  Exp.  Co.  tv  Newby,  36 

Ga.  635  8,  34,  112 

Southern  Exp.    Co.   v.   Palmer, 

48  Ga.  85  163,  266 

Southern   Exp.   Co.   v.   Purcell, 

37  Ga.  103  112 

Southern  Exp.   Co.  v.  Shea,    88 

Ga.  519  329,  330,  380 

Southern  Exp.  Co.  v.  Thornton, 

41  Miss.  216  8,  343 

Southern  Exp.  Co.  v.  Urquhart, 

52  Ga.  142  344 

Southern  Exp.  Co.  v.  "NVomack, 

1  Heiskell  (Tenn.),  256 

20,   135,  293,  381 
Southwestern  Ry.  v.  Webb,   48 

Ala.  585  7,  93 

Spaids«;.  N.  Y.  Mail  S.  S.  Co., 

3  Ualy  (N.  Y.),  139  295,  296 

Spalding  v.  Rudins,  6  Beav.  376; ' 

5  B.   &  Ad.   sn 

533,  544,  545,  546 
Spears  v.  L.  S.  &  M.   S.  R.  R. 
Co.,    67    Barbour    (N.   Y.), 
613  9 

488 


BRCTIOX 

.Spence  v.  Chadwick,  10  Q.  B. 
517 ;  S.  C.  16  L. 
J.  Q.  B.  313;  11 
Jur.  872 

202,  274,  305,  313 
V.  Daggett,  2  Vt.  92 

194,  275 
Speyer  v.  The  ]\Iary  Belle  Rob- 
erts, 2  Sawy.  1    '  276 
Spinetti  v.  Atlas   S.   S.   Co.,  80 
N.  Y.  71  ;   S.  C.  14  Hun  (N. 
Y.),  100                         129,  208,  320 
Sprague    v.    West,    Abb.    Adm. 

Rep.  548  356 

Spring  V.  Haskell,  14  Gray,  309       36 
Sproat    V.    Donnell,    26    Alaine, 

187  64,  85,  86 

Sprowl  V.  Kellar,  4  Stew.  &  P. 

Ala.  382  193 

Squire  r.   N.  Y.  C  R.  R.  Co., 

98  Mass.  239         101,  121,  159,  165 
S.    S.   Co.   V.   Bason,   Harp.   L. 

Reps.  (S.  C.)  262  192 

Stamma  v.  Brown,    2   Str.  1173 

(16  Geo.  II.)  207 

Stanton  v.  Edger,  16  Pick.  476       536 
Steamboat   Comj)any  v.    Bason, 

Harp.  (S.  C.)  262  192,  278 

Steamboat  Joiin  Owen  v.  John- 
son, 2  Ohio  State,  142  383 
Stearine    Co.    r.    Heintzemann, 
11   L.   T.  W.   S.   272;   17  C, 
B.  N.  S.  56;   10  Jur.  U.   S. 
881  1 
Stedman  v.  Western  Transporta- 
tion Co.,  48  Barb.  (N.  Y.)  97     226 
Steele  v.  McTver's  Adms.,   31 
Ala.  667 

81,  191,  269,  271 
V.   Townsend,     37    Ala. 

247  102,  105,  150,  252 
Steelraan  r.  Taylor,  3  Ware,  52  379 
Steinbach  v.  Ogden,  3  Caines,  1  210 
Stephens  v.  Harris,  56  L.  J.  Q. 

B.  D.  516  316 
Stephens  Trans.  Co.  ?i.  Tucker- 
man,  33  N.  J.  543  ;  4  Vroom. 

(N.  J.),  543  9,  267 

Stevens  v.  Navigazione  Generale 

Italiana,  39  Fed.  Rep.  562  298 

Stevenson  v.  Gildersleeve,  2  U. 

C.  C.  P.  495  100 
Stewart   v.    London,    etc.,    Rv. 

Co.,3H.&C.  135     265 
V.    Merch.  Dis.  Trans. 
Co.,  47  Iowa,  229 

71,  226,  231 


TABLE   OF   CASES. 


SECTION 

Stewart  v.  T.  H.  I.  R.  R.  Co.,  3 
Fed.  (U.  S.  C.  C.  Dist.  Mo.) 
768  328 

Stiles  V.  Davis,  1  Black,  101     300,  302 
Stinson  v.  New  York  Central  R. 

R.  Co.,  32  N.  Y.  333  255 

Stmr.  Missouri  v.  Webb,  9  Mo. 

193  47 

Stmr.    Wisconsin    v.    Young,    3 

Green  (Iowa),  268  14,  25 

Stollenwerck    v.    Thacher,    115 

Mass.  224     167,  469,'  480,  482,  485 
Stone    V.    National    Ins.   Co.,    19 
Pick.  (36  Mass.)  34 

206,  211 
V.    Swift,  4  Pick.  389  503 

Stoneman  v.  Erie  R.  R.  Co.,  52 

N.  Y.  429  34 

Story   on    Bailments,   496,    and 

cases  cited  10 

Stoiiehton  V.  Rappalo,  3  S.  &  R. 

(Pa.)  559  297 

Stoul  V.    St.  L.  &  P.  R.  Co.,  9 

Bradwell,  48  432 

Strohn  i>.  D.  &  M.  R.  R.  Co., 
21  Wis.  554;   ^3  Wis.  126 

141,  151,  174,  184 
Strong  V.  Grand  Trunk   R.   R. 
Co.,  15  Mich.  206 

26,  31 
V.   Martin,  1   Dunl,  Bell      . 
&  Mur.    Sess.  Cas. 
1245  211 

St.    Louis,  etc.,    R.    R.  Co.   v. 

Dorman,  72  111.  504  217 

St.  Louis  &  I.  M.  R.  R.  Co.  v. 

Larned,  103  111.  293  340 

St.   Louis   I.    M.  &    S.    Ry.  v. 

Lesser,  46  Ark.  236  106 

St.  Louis  K.  C.  N.  R.  Co.  v. 
Piper,  13  Kansas,  505 

116,  329,  330,  337 
St.   Louis,    etc.,    R.    R.   Co.  v. 
Smuck,  49  Ind.  302 

114,  216,  268,  274 
St.     Louis,    etc.,     R.     Co.     v. 

Weakly,  50  Ark.  397  144 

St.  Louis  Natl.  Bk.  v.  Ross,  9 

Mo.  App.  399  496 

St.    Marc    v.    La    Chappella,    1 

Martin's  La.  Rep.  36  297 

St.  John  V.  Exp.  Co.,  1  Wood's 
^  C.  C.  Rep.  612      39,  320,  327,  328 
St.  John  V.   Van   Santwood,   25 

Wendell  (N.  Y.),  660  328 

S.  &  M.  R.  R.  Co.  V.  Butts,  43 
Ala.  385  334 


SECTION 

Stuart  V.  Crawley,  2  Stark.  323      221 
V.  Tennessee  M.  &  F.  Ins. 

Co.,  1  Humph.  242        206 
Stumore  v.  Breen  L.  R.,12  App. 

Cas.  698  182 

Sturgeon  v.  St.   Louis,  etc.,   R. 

R.  Co.,  65  Mo.  569  240,  261 

Sturgess    ik    Steamboat    Colum- 
bus, 23  Mo.  230  352 
Suckley  v.  Delafield,   2  Caines, 

222  206 

Sullivan  v.  Thompson,  99  Mass. 

259  410 

Summerill    v.    Elder,    1    Binney 

(Pa.),  106  479 

Sumner  v.  Southern  R.  R.  Ass., 

7  Baxter  (Tenn.),  345 

23,  343,  377 
Sunderland  (;.  Westcott,  2  Swee- 
ney  (N.   Y.    Supr.   Ct.),   260 

129,  150,  157 
Sutton  V.  Kettell,  1  Sprague,  309       25 
V.  Mitchell,  1  T.  R.  18        294 
Swanston    v.   Garrick,   2    L.    J. 

N.  S    Ex.  255  243 

Sweet    V.    Black,    2    Sprague' s 

Dec.  49  63 

Swift  V.  Pacific,  etc.,  Stms.  Co., 

106  N.  Y.  206  63,  151,  325 

Swinburne  v.  Massue,  Stewart's 

L.  C.  Rep.  569  386 

Swindler  V.  Hilliard,  2  Rich.  (S. 

C),   286  134,  224 


T. 


Taggard  v.  Loring,  16  Mass.  336     210 
Talbott    V.    Merchant's      Disp. 
Trans.    Co.,    41 
Iowa,  247  92 

Talcott  V.  Delaware  Ins.  Co., 
2  Wash.  C.  C. 
449  418 

Tarbell    v.    Royal    Exch.,    etc., 

Co.,  110  N.  *Y.  170  400 

Tarbox  v.  Eastn.  Stmp.  Co.,  50 

Me.  339  49 

Tardos  v.  C.  St.  L.  &  N.  0.  R. 

R.  Co.,  35  La.  Ann.  Rep.  15       118 
Tardos  v.   Ship   "Toulon,"    14 

La.  Ann.  Rep.  429  253 

Tate  V.  Meek,  8  Taunt.  280  359 

Taubman   v.   Pacific   Steam    N. 

Co.,  26  L.  T.  N.  S.  704  100 

Taylor  v.  Chicago  &  N.  W.  Ry. 

Co.,  74  111.  86  175 

489 


TABLE   OF   CASES. 


SECTIOjr 

Taylor  v.  Little  Rock,  etc.,  R. 
R.  Co.,  39  Ark. 
148  ;   32  Ark.  393 

228,  339,  348 
V.  Liverpool,  etc.,  S.  S. 
Co.,  9  L.  R.  Q.  B. 
C.  546;  S.  C.  43 
L.  J.  Q.  B.  205; 
22  W.  R.  752;  30 
L.  T.  N.  S.  714 

319,  320 
V.  Turner,  87  111.  296 

479,  516,  519 
Thayer  v.   St.    Louis,   etc.,    R. 

Co.,  22lnd.  26  114 

The  Adrlatfc,  16  Blackf.  C.  C. 

424  47,  49 

The  Alexandra,  14  L.  J.  742  ; 
14  W.  &  R.  466  ;  14  L.  T.  N. 
S.  742  242,  243 

The  "America,"  8  Ben.  491  283 

The  Andover,  3   Blatehford   U. 

S.  C.  C.  Rep.  303  59 

The  Anna  Maria,  Adm.  Ct.  31 

Julv,  1871  241 

The  Antionetta  C,  5  Ben.  564     272 
The  Bark  Carlotta,  9  Benedict's 
Rep.  1  ;  3  Asp.  Mar.  Law  Cas.  (I^. 
S.)  456  ;   3  Kent  Couun.  300 

74,  298 
The  Bark  Cheshire,  2  Sprague, 

28  244 

The    Bark   Colonel   Ledyard,   1 

Sprague,  530  243,  244 

The    Bark    Edwin,    1     Sprague 

Dec.  (D.  C.  Mass.)  477        18,  180 
The  Bark  Tangier,  3  Ware,  110     400 
The    Bark    "Gentleman,"    01- 
cott's    Adm.    110;     S.    C.    1 
Blatch.  196  285 

The    Bark   Whistler,   2   Sawyer 

(U.  S.  S.  Ct.),  348  36 

The    "Barraconta,"     40    Fed. 

Rep.  498  252 

The  Belfast  v.  Boon,  41  Ala.  50 

290,  294 
The  Bellona,  4  Ben.  503  103 

The  Bergenseren,  36  Fed.  Rep. 

700  267 

The  Bernina,  L.  R.  12  P.  D.  36     269 
The  Bird  of  Paradise,  5  Wall. 

545  359 

The  "Bohemia,"  38  Fed.  Rep. 

756  309 

The  Boston,  1  Lowell,  464     400,  403 
The   Brantford    City,    29    Fed. 

Rep.  373  267 

490 


8ECTI0S 

The     Brig      "  Collenberg,"      1 

Black,  170  283 

The   Brig    Sloga,    10    Benedict, 

U.  S.  1).  C,  X.  Y.  315  75 

The  "  Burgundia,"  29  Fed.  Rep. 

607  252 

The  California,  2  Sawyer's  Rep. 

(1).  C.  Oregon)  12  51,  57 

The   Carlotta,  3  Asp.  Mar.   Law 

Cas.  N.   S.  456  ;   4   Irish  Jur. 

237  ;  also  in  9  Benedict  Rep. 

1  ;   3  Kent's  Comm.  300 

74,  272,   298 
273 


272 
400 


252 

343 
276 


The  Casco,  Davies,  184 
The    Chasca,    L.    R.,    4    A<lm. 
I      44  6;   S.  C.  44  L.  J.  Adm.  17 
The   "City  of  Austin,"   2  Fed. 

Re[).  412 
The  "  Citv  of  Norwich,"  3  Ben. 

575        '  103,  224 

The  "  Collenberg,"  283 

The  Columbo,   3  Blatehford  C. 

C.  Rep.  521  55,  59 

The  Compta,  4  Sawver,  375 

273,  276 
The    "Connaught,''     32     Fed. 

Rep.  640 
The  Convoy's  Wheat,  3  Wallace, 

225 
The  Costa  Rica,  3  Sawyer,  538 
The   "  David  and  Caroline,"    5 

Blatch.  266  103,  252 

The  Delaware,  14  Wallace,  579, 
601 
1,  3,  9,  13,  15,  18,  44,  65,  69,  86, 
150,  239,  250 
The  Delhi,  4  Ben.  345  103,  253 

The  Ebenezer,  2  W.  Rob.  206       215 
The  Eddy,  5  Wallace,  481 

359,  400,  401 
The  Edwin,  1  Sprague,  477  272 

The  Energie,  2  Asp.  Mar.   Law 

Cases,  296  59 

The  Enrique,  5  Hughes,  275  250 

The  Emily  v.  Karney,  5  Kansas, 

645  150,  228 

The  Emma  Johnson,  1  Sprague, 

527  273 

The  Ethel,  5  Ben.  154  272 

The  Express,  L.  R.   3  Adm.  & 

Ecc.  599  306 

The  Farwell,  8  Biss.  61  436 

The  "Favorite,"  2  Biss.  502  269 

The    Filia    Maggiore,   2    L.   R.    . 

Adm.  106  243,  244,  246,  442 

The   Friendschaft,  3  Wheaton, 

14  419 


TABLE   OF   CASES. 


BECTION 

The  Freedom,  L.  R.  3  C.  P.  594 

49,  242,  272,  273,  442 
The  Cxalley  of  Lome,  Mit.  Miir. 
Ro<r.   Feb.  11,  1876;  Leggett 
on  Bills  of  Ladins,  p.  179  204 

The  Gazelle,  128  U^.  S.  474  73 

The  Goldhunter,   Blatch.   &  H. 

300  272 

The  "  Gratitudine,  3  Rob.    Ad. 

240,  260  285 

The  Hallev,   2  L.  R.   Adm.  & 

Ec.  10    '  99 

The  Hamburg,  33  L.  J.  (N.  S.) 

Adm.  116  288 

The   Heinrich,   3    L.   R.   Adm. 

424  292 

The  "Helen,"  15  W.  R.  202; 

12  Jur.  (N.  S.)  675  ;  4  Moore 

P.  C.  C.  (N,  S.)  70;  B.  &L. 

■     429;   14  L.  T.  N.  S.  863  251 

The  "Hudson,"   11   La,    Ann. 

427  201 

The  Huntress,  Davies,  82  259,  269 
The  Ida,  32  L.  T.  N.  S.  541  60 

The  Idaho,  93  U.  S.,  3  Otto  575 

18,  436,  437,461,  464,  468 
The  "  Invincible,"  1  Lowell  De- 
cisions,  225;    3  Sawyer,   176 

103,  251,  284 
The  Isabella,  8  Ben.  139  272 

The  "Jefferson,"  31  Fed.  Rep. 

489  252 

The   J.    W.    Brown,    1    Bissell 

(C.  C),  76  14,  25 

The  John  Bellamy,  L.  R.  3  Ad. 

129  418 

The   John    K.    Shaw,    32    Fed. 

Rep.  491  181,  515 

The  Joseph  Grant,  1  Biss.  193  432 
The  Juniata   Paton,  1   Biss.    15 

192,  270 
The  Karo,  29  Fed.  Rep.  652  .  73 
The  Kathleen,  43  L.  J.  Adm.  39  212 
The    Kensington,  24    La.    Ann. 

Rep.  100  203 

The  Keokuk,  1  Biss.  522  269,  275 
The  Keystone,  31  Fed.  Rep.  412  322 
The  Lady  Franklin,  8  Wallace, 

325  14,  1^,  25,  65,  167,  428,  432 
The  "  Lady  Pike,"  2  Biss.  141  269 
The  Lizzie,  L.  R.  2  Adm.  254  288 
The  Loon,  7  Blatch.  C.  C.  Rep. 

244  167,  180,  432 

The   "Lvnx"   v.  King,  12  Mo. 

272      '  286 

The   Magellan  Pirates,  25  Eng. 

Law  &  Eq.  Rep.  595  290 


SECTION 

The  Maggie  Hammond,  9  Wall. 

435  190,  194,  199 

The  Mairgie  M.,  30  Fed.  Rep. 

692;   31  Fed.  Rep.  610  322 

The  "  Martha,"  3  Olcott's  Adm. 

140  321 

The  Mary  Ann  Guest,  1  Blatchf. 

358  533 

The    Mary    Belle     Roberts,     2 

Sawy.  1  276 

The  Mary  and  Susan,  1  Wheat. 

25  471 

The  Mary  Stewart,  2  W.  Rob. 

463  215 

The  May  Queen,  1  Newb.  465  103 
The  Milan,  31  L.  J.  Adm.  Ill  215 
The   Miletus,   5   Blatchf.   CO. 

335  272,  299 

The  Milwaukee  Belle,  2  Bissel, 

197  249 

The   Miranda,   41    L.  J.   Adm. 

82  204 

The  Mohawk,  8  ^Vallace,  153  272 

The    Mollie    ]\Iohler,    2   Bissell, 

505;   affirmed  21  Wall.  230         269 
The  Nathaniel  Hooper,  3  Summ. 

512  378 

The   Nepoter,   38    L.  J.   Adm. 

63  242,  251 

The  Neptune,  16  L.  T.  N.   S. 
Adm.  36;   6  Blatchf.  193 

239,  247,  269 
The  Newark,  1  Blatch.  203  273 

The   New  Jersey,    Olcott,    444 

212,  269 
The   New   "World    v.    King,    16 

How.  469  103 

The   "Niagara"   v.   Cordes,    21 

How.  7  267,  285 

The  Nith,  36  Fed.  Rep.  383  321 

The    Nitro-glycerine    Case,    15 

Wall.  524  246 

The  Northern  Bell,  1  Biss.  529 

267,  273 
The  "Norway,"  8  Moore  P.  C. 
C.    (N.   S.)    245;    12    L.  J. 
(N.  S.)  57  283,  288,  376 

The  Ocean  Queen,  2  Asp.  Mar. 
Law  Cas.  419;  1  W.  Robin- 
son, 457  215 
The  Ocean  Wave,  3  Biss.  317  275 
The  Olbers,  3  Ben.  148  49,  253 
The  Onrust,  1  Ben.  431  301 
The  Oritiamme,  1  Sawyer  C.  C. 

176  51,  252 

The  Pacific,  Deady  (D.  C),  17 

49,  103,  130,  161 

491 


TABLE   OF   CASES. 


SECTION 

The  Patria,  3  L.  R.  Adm.  436  ; 
S.  C.  1  Asp.  Mar.  Law  Cas. 
71  ;  41  L.  J.  Adm.  23  (Ct.  of 
A.lm.)  74,  95,  274,  292 

The  Pennsvlvania  Co.  v.  Fair- 
child,  Cg'lll.  260  91 

The  Peter  der  Grosse,  34  L.  T. 
N.  S.  749  ;  1  L.  R.  Prob.  Div. 
414  45,  62 

The  Peytona,  2  Curtis,  21       239,  250 

The    Phebe,     1     Ware's     Rep. 

(D.  C.  Me.)  263  64 

The  Phila.  and  Reading  R.  R. 
Co.  V.   Northani,   2  Benedict, 

1  400 
The  "  Polynesia,"  30  Fed.  Rep. 

210  252,  253,  267 

The    Port    Adelaide,    38    Fed. 

Rep.  753  409 

The  Portsmouth,  9  Wall.  682 

248,  269 
The  Propeller  Mohawk,  8  Wall. 

153  192,  351 

The  Prosperino  Polasso,   29  L. 

T.  N.  S.  622  45,  60 

The  Rebecca,  1  Ware,  188  273 

The  Recside,  2  Sumner,  567 

192,  267,  271,  273 
The  Rocket,  1  Biss.  354  103,  269 

The  San  Roman,  L.  R.  3  Adm. 

583  74 

The   Santee,  7  Blatchford,  186; 

2  Ben.  519  395,  400,  402 
The  Sargossa,  2  Ben.  544  180 
The  Schr.  Freeman  v.  Bucking- 
ham, 18  Howard,  182 

15,  167,  176,  178,  180,  428,  432 
The  "  Scotland,"  105  U.  S.  24  233 
The  Shannon,  1  W.  Rob.  463  215 
The  Ship  Ben  Adam,  2  Bene- 
dict, 445  400,  408 
The  Ship  Black  Hawk,  9  Bene- 
dict (U.  S.  D.  C),  207  49 
The  Ship  Howard  v.  AVissman, 

18  How.  231  282 

The  Ship  "Invincible,"  3  Saw- 
yer, 176  283 
The  Ship  Zone,  2  Sprague,  19  50 
The  Sidonian,  34  Fed.  Rep.  805  ; 

S.  C.  35  Fed.  Rep.  534  65 

The    "Spring,"    29    Fed.   Rep. 

397  273 

The  "Star  of  Hope,"  17  Wall. 
651 ;  2  Sawyer's  Rep,  15 

70,  243,  269,  322 
The    Steamship     "Pereire,"    8 
Ben.  301  253 

492 


The  Steamship  Ville  de  Paris,  3 

Benedict,  276  400,  406 

The  Stettin,  L.  R.  14  P.  D.  142     414 
The  St.  Cloud,  Brow.  &  L.  Adm. 

4  244 

The  St.  Jose  Indiana,  3  Wheat. 

14;   1  Wheat.  208  419,  484 

The  Sultana  v.  Chapman,  5  Wis. 

454  151 

The  Sun  Mutual  Insurance  Co. 
V.  The  Miss.  Trans.  Co.,  4 
McCrary,  636  213 

The  Tangier,  32  Fed.  Rep.  230  375 
The  Teutonia,  3  L.  R.  Adm. 
394;  S.  C.  24  L.J.  (N.  S.) 
21;  1  Asp.  Mar.  Law  Cas. 
32  ;  S.  C.  on  Appeal,  2  L.  R. 
4  P.  C.  71  292,  306 

The  Thames,  14  Wall.  98 

414,  427,  493 
The  Thomas   Newton,  41    Fed. 

Rep.  106  .      190 

The  Tigress,  32  L.  J.  Adm.  97      458 
The  Tybee,  1  Woods,   358  398 

The  Velona,  3  Ware,  139  378 

The  Venus,  8  Cranch,  253  480 

The  Victor,  29  L.J.  Adm.  110  ; 

2  L.  T.  (N.  S.)  331  215 

The  Volunteer,  1  Sumner,  551        359 
The    Waldo,     2    Ware's    Reps. 

165  88 

The  Wanderer,   29    Fed.   Rep. 

260  69 

The  War  Eatrle,  6  Bissell,  364        103 
The  Wellintr'ton,  1  Bissell,  279  85 

The  Wilhelm  Schmidt,  25  L.  T. 

(N.  S.)  34  292 

The  Willard,  28  Fed.  Rep.  759      267 
The   Woodrop,    2  Dod's  Adm. 

Rep.  83  212 

The  ZoUverein,  Swab.  98  99 

Thomas  v.  Ship  "Morning  Glo- 
ry," 13  La.  Ann. 
Rep.  269  118,  252 

V.  Snyder,      3     Wright 

(Pa.),  317      363,  369,  378 
Thompson  v.  C.  &  N.  W.  Ry. 
Co.,  27  la.  561 

252,  261 
V.  Downing,  14  M.  & 

W.  403  441,  493 

V.  Fargo,   63  N.    Y 

Ct.  of  App.  479  159 

V.  Trail,  2  Car.  &  P. 

334  465 

y.  Whitmore,  3  Taunt. 
227  273 


TABLE   OF   CASES. 


232 
471 

208 

208 

308 
461 


366 


294 


194 


SECTION 

Thorinirton  v.  Smith,  8  Wall.  1        293 
Thorman  v.  Burt,  54  L.  T.  (N. 

S.)  349  73,  167,  182 

Thorocjood  v.  Marsh,  1  Gow.  N. 

P.  C.  105  223 

Thrift  V.  Youle,  46  L.  J.  C.  P. 

402  251,  321. 

Thurman  v.  Wells,  Fargo  &  Co., 

18  Barbour  (N.  Y.),  500  169 

Thurston  v.  Columbian  Ins.  Co., 

3  Caines  (N.  Y.)  89  207 

Tiedman  v.  Knox,  53  Md.  612 

167,  454 
Tierney  v.  N.  Y.  C.  &  H.  R.  R. 

Co.,  67  Barbour  (N.  Y.),  538      48 
Tilden  v.  Minor,  45  Vt.  195  510 

Tindal   v.  Taylor,  4  El.  &   Bl. 

219  180,  441 

Tio  V.  Vance,  11  La.  199  351 

Tison  V.  Howard,  57  Ga.  410  491 

Todd  V.  Ritchie,  1  Stark.  190         207 
Torrance  v.  Smith,  3  Upper  Can- 
ada, C.  P.  411 
Torrey  v.  Corliss,  33  Me.  333 
Toumlin  v.  Anderson,    1  Taunt. 
227 
V.  Inglis,  1  Camp.  421 
Touteng  v.  Hubbard,  3  B.  &  P. 

293 
Traders'     Bank    v.    Farmers    & 
Mechanics'  Bank,  60  N.  Y.  40 
Transportation   Co.   v.  Downer, 

11  Wallace,  129  216,  268,  273 

Trask  v.  Duvall,  4  Washington, 

181 
Trent.,    etc.,   S.    Nav.    Co.    v. 
Wood,   3   Esp.   127  ;   S.  C.  4 
Doug.  287 
Tuckerman    v.    Trans.    Co.,     3 

Vroom  (N.  J.),  320 
Tudor  V.  Macomber,  14   Picker- 

in.T  (31  Mass.),  34  33,  64 

TuUy  V.  Terry,  Law  R.  8  C.  P. 
684 ;  S.  C.  42  L.  J.  C.  P. 
240  60 

TurnbuU   v.   Citizens'    Bank,    4 

Woods,  192  398,  399 

Turner  v.  Ship  Black  Warrior,  1 

McAllister,  181  47 

V.  Trustees  of  Liverpool 

Docks,  6  Ex.  543     487,  528 
Turney    v.     Wilson,     7    Yerger 

(Term.),  340  81,  268,  269,  275 

1265  Vitrified  Pipes,  14  Blatchf. 

274     .  400 

Tysen  v.  Moore,   56  Barb.   (N. 

Y.)  442  267 


BECTION 

T.  AV.  &  N.  Ry.  Co.  v.  Hamil- 
ton, 76  111.  393  254 

T.,  W.  W.  Ry.  Co.  V.  Lockhart, 

71  111.  627  329 

T.,  P.  &  W.  R.  R.  Co.  V.  Mer- 
riman,  52  111.  123  326 

T.  &  P.  R.  Co.  V.  Rogers,  3 
Southwest  Rep.  660  339 


Co. 

V 

167, 

461 

C. 

C. 

269, 

274 

u. 

Union  Express  Company  v. 
Graham,  26  O.  St.  595 

132,  223,  228 

Union  Express  Co.  v.  Ohleman, 

92  Pa.  St.  323  226 

Union  Ex.  Co.  v.  Shoop,  4  Nor- 
ris  (Pa.)  325  324 

Union  Mutual  Ins.  Co.  v.  Indian- 
apolis, etc.,  R.  R.  Co.,  1  Dis- 
ney (O.),  480  223,  272 

Union  R.  R.  &  Trans.  Co.  v. 
Riegel,  23  P.  F.  Smith  .(Pa.), 

72  68 
Union  Steamboat  Co.  v.  Knapp, 

73  111.  506  226,  228 
Union    Transportation 

Yeager,  34  Ind.  1 

U.   S.  V.  Hall,   2  Wash. 
366 

United  States  v.  Jones,  3  Wash. 
C.  C.  209 

United  States  v.  Kimball,  13 
Wallace,  636 

United    States    r.    Palmer,     3 

Wheaton,  610  290,  293 

United  States  v.  Power,  6  Mon. 

T.  271  266,  272 

U.  S.  Express  Company  t;.  Back- 
man,  28  O.  St.  144 

144,  149,  223,  228 

U.  S.  Exp.  Co.  V.  Haines,  67  111. 

137  150,  153,  158,  329 

United  States  Ex.  Co.  v.  Har- 
ris, 51  Ind.   127 

114,  348,  387,  393 

United  States  Express  Co.  v. 
Keefer,  59  Ind.  263 

United  States  Ex..  Co.  v.  Rush, 
24  Ind.  403 

U.  S.  &  N.  I.  R.  Co.  V.  Heaton, 
37  Ind.  448 

Unnevehr  v.  Stm.  Hindoo,  1 
Fed.  Rep.  627 

493 


419 


72 


382 


328 


114 


144 


TABLE   OF   CASES. 


Vail  V.  Pacific  U.  R.  Co.,  G3  Mo. 

230  190,  196,  23i 
Yall6  V.  Carr6,  36  Mo.  575  476,  491 
Yalk'vs  V.  AVheeler,   1   Cowpcr, 

143  2<'5,  -207 

Van  Etlen  v.  Newton,  25  N.  Y. 

St.  Rep'r  751  356 

Van    Horn    v.    Taylor.    7    Rob. 

(l,a.)  201  ;  2  La.  Ann.  Kcp. 

587  212,  213,  215,  269,  275 

Van   Santwood  v.   St.   John,   6 

Hill  (N.  y.),  157  ^  328 

Van  Svckel  v.  The  Thomas  Kw- 

in{r,3Clark(Pa.),  U.S.  C.  C. 

231  ;  S.  C.  Crabbo,  405  248,  269 
Van  Winkle  v.  Adams  E.\.  Co., 

3  Robertson,  59       382 
V.  U.  S.  Mail  Co., 

37  Barb.  122  300 

A'anphan    v.   630    Casks    SheiTV 

^Vine,  7B«-ne(lict'sRc])r.  5(>6  45,49 
Vernard  r.  Hudson,  3   Sumner, 

(U.  S.  C.  C),  405  _  54 

Verner    v.    Sweitzer,    8    Casey, 

208;  32  Pa.  St.  208  102,  133,  151 
Vertuc   V.  Jewell,  4    Campbell, 

31,  491,  492,  537 

Virginia,  etc.,  R.  R.  Co.  v.  Sav- 
ers, 26  Grattan,  328  '        138 
Vitrified  Pipes,  14  Blatch.  274        378 
Vitrilied,   etc.,   Sewer   Pipes,    5 

Ben.  402  252 

Vos  V.  United  Ins.  Co.,  2  Johns. 

Cas.  180  206 

Vose   V.   Morton,    5    Gray    (71 

Mass.),  594  358 

Vroman  v.  A.  M.  W.  Ex.  Co., 

5  N.  y.  S.  C.  22  144 


W. 

Wabash  &  Western  R.   R.   Co. 

I'.  Elliot,  76  111.  67  169 

Wade  V.  Hamilton,  30  Ga.  450  491 
"Wahl  V.  Holt,  26  Wis.  703  329 

Waite  V.  Baker,  2  Exr.  1  500,  529 
Waldron  r.  Romaine,  22  N.  Y.  386  472 
AValkert'.  Cassaway,  4  La.  Ann. 

Rep.  19  354 

V.  London  Ry.Co.,  King- 
ston Spring  Assizes 
(1843),  cited  in 
Waif,  Sum.  of  Law 
of  Railways,  305  217 

494 


BECTIOlt 

Walker   V.    Skipwith,    Meigs, 

Tenn.  502  135,  172 

V.    The    State,    9    Tex. 

A  pp.  39  471 

V.  Transi)ortation  Co.,  3 

Wall.  150  36,  81,  232 

Wallace  v.  Clayton,  42  Ga.  443 

190,  194,  200 
V.  Matthews,  39  Ga.  617 

63,  112 
V.  Sanders,  42  Ga.  486  ; 
50  Ga.  134 

112,  155,  261,  295 
r.  Vigils,    4     Blackford 
(Ind.),  260  17 

Wallev  V.  Montgomery,  3  East, 

5S5'  ■  _  472 

Walliiigford    v.   Columbia,    etc., 

K.  R.Co.,  26  S.  Car.  258    134,  343 
Wal|)ole  V.  Bridges,    5    lilackf. 

(In<l.)  222  188,  191,  201,  202 

Walter  I'.  Brewer,  11  Mass.  99       429 
V.  Ross,  2  Wash.  C.  C. 
283  493 

Ward  V.  Wood,   13   Mass.    539 

206,  209 
Warden  c.  Greer,  6  Watts  (Ga.), 

424  48,  241,  282 

Wareham  Bank  v.  Burt,  5  Allen 

(.Mass.),  113  382 

Warhus  v.  Savings  Bank,  21  N. 

y.  543  151 

Warner  i».  Western  Trans.  Co. 
5  Robertson  (N.  Y.  Supr.  Ct.), 
490  35,  39 

Warren  v.  Hendei-son,  8  Lower 

Canada,  108  353 

V.  Sproule,  2  Marsh,  528     633 
r.  Wilson,  6  Upper  Can- 
ada    Q.     B.    O.     S. 
435  190 

Wart  r.  A.  &    S.  R.    R.  Co.,  5 

Lansing  (N.  V.),  475  175 

Watkins  i'.  Paine,  57  Ga.,  50  471 

Watkinson  v.  Laughton,  8  Johns. 

(X.  y.)  213  294 

Watson  V.  M.  &  C.  R.  R.  Co.,  9 

Heiskell  (Tenn),  255     170 
V.    Yates,    10     Martin's 

La.  Rep.  687  33 

Watts    V.    The    Saxon,    11    La. 

Ann.  Rep.  43  325,  326 

Wavland  o.  Moseley,  5  Ala.  430 

14,  63,  64,  105,  369 
Wavne   v.   Str.    Gen.    Pike,  .16 

Ohio,  421  64,  82,  398 

Webb  V.  Anderson,  Taney,  504      359 


TABLE  OF  CASES. 


42 
131 
388 
109 
414 
414 
261 
621 


SECTION 

Weed  V.  Barney,  45  N.  Y.  344     382 
V.  Panama  R.  R.  Co.,  17 

N.  Y.  362  313 

V.  S.  &    S.    R.    R.   Co., 
19  Wend.  (N.  Y.)  534 

325,  327 
Wegiielin  v.  Cellier,  L.  R.  6  H. 

L.  286  364,  379 

Weil  V.  Express   Co.,   7  Fliihi. 

Rep.  88 
Weinberg   d.   A.    &    R.    R.    R. 

Co.,  91  N.  C.   31 
Weir  V.   Express  Co.,    5   Plilla. 

Rop.  355 
Wekh  V.  B.    &   A.   R.   R.   Co., 

41  Conn.  333 
Wells  r.  Am.   Ex-press    Co.,-  44 
Wis.  342 
V.  Oregon,  etc.,  Ry.  Co., 

32  Fed.  Rep.  51 
V.  Stm.   Nav.   Co.,  8   N. 
Y.  375 
Welsh  V.  Gossler,  11    Abb.  Law 
Cases,  452 
V.  P.,  Ft.  W.  &C.  R.  R. 
Co.,  10  Oliio  St.  65 

132,  217,  219,  228 
AVentworth  v.  Ship   Realm,    16 

La.  Ann.  Rep.  18  59 

Wernwag  v.  P.,  W.  &  B.  R.  R. 

Co.,  117  Pa.  46  343,  414 

Werthcimer  v.  Pennsylvania  R. 
R.Co.,  17  Blatfhf,  421  ;  8W. 
N.  C.  (Pa.)  272 

150,  223,  228,  229,  316 
West   V.    Stm.   Berlin,   3  Iowa, 

532  45,  49,  68,  190 

Westcott  V.  Fargo,  63  Barb.  (N. 
Y.)  349;   61  N.  Y.  542 

129,  261,  392 
West  Manufac.  Co.  v.  "Guiding 

Star,"  37  Fed.  Rep.  641 
AVest.  R.  Co.  V.  Little,  86  Ala. 

159 
W.  ilfg.  Co.  V.  P.  W.  R.  R. 

Co.,  113  Mass.  490 
Western,  etc.,  R.  R.  Co.  v.  Mc- 

Elwee,  6  Hfcisk.  208 
Western  Trans.   Co.   v.  Barber, 

56  N.  Y.  544  412,  468 

Western  Union  Tel.  Co.  v.  Gra- 
ham, 1  Col.  230  108 
W.  T.   Co.  V.  Newhall,   24  111. 

466  113,  153,  157 

Wetzell  V.  Dinsmore,  54  N.  Y. 

496  147 

Wetzler  v.  Collins,  70  Me.  290    14,  47 


252 
105 
328 
329 


SECTION 

Weyand  v.  Atchinson,  etc.,   R. 

Co.,  75  Iowa,  573  ;   30  Am.  & 

Eng.  R.  Cases,  102;   S.  C.  33 

Northwest,  133  414,  455,  495 

AVheeler  v.  S.  F.  &  A.  R.  R. 

Co.,  31  Cal.  46  323 

i;.  St.  L.  &  S.  R.  Co., 
3  Mo.  Appeal  R. 
J.  359  72,  400,  415 

Whicher  v.   Steamboat   Ewing, 

21  Iowa,  240  235 

White  u.  Ashton,  51  N.  Y.  280     64,  65 
V.  Colorado    Central    R. 

R.  Co.,  5  Dillon,  428       226 
V.  Gardner,  5  L.  &  Eq.  R. 

375  533 

V.  G.    T.    Co.,    46    Wis. 

493  151 

V.  Steamer    Kate    Dale, 

16  La.  Ann.  Rep.  172      352 
V.  A'^an  Kirk,  25  Barbour 

(N.  Y.),  16  14,  64,  65 

Whitehead  v.  Wilmington,  etc., 
R.  Co.,  9  Am.  & 
Eng.  Cas.  168  348 

V.  W.  &  W.  R.  R. 
Co.,  87  N.  C.  225      131 
Whitesell  v.   Crane,   8  Watts  & 

Sergeant,  269  133 

Whitesides  v.  Russell,  8  AV.  &  S. 

(Pa.)  44     266,  275,  351 
V.  Thurkill,  12  S.  & 
M    599  213 

AA''hitney  v.  Gauche,  11  La.  Ann. 

Rep.  432  49 

AVhitworth  v.  Erie  R.  R.  Co., 
87  N.  Y.  414  ;  6  Am.  &  Eng. 
R.  R.  Cas.  349  223,  348 

Wichita  Bank  v.  A.  T.  &  S.  R. 

Co.,  20  Kan.  519  434 

AA^'iggin   v.    Amory,   14  MasS.    1 

205,  207 
V.  Boston  &  Albany  R. 
R,    Co.,    120   Mass. 
201  29 

AA'iggins   v.   Erie  R.    R.   Co.,    5 

Hun  (N.  Y.),  185  165 

AVilby  V.  W.  C.  R.  Co.,  2  11.  & 

N.'703  325 

AA'ilcocks  V.  Union   Ins.   Co.,  2 

Binn.  (Pa.)  574  205,  206 

AVilcox  Silver  Plate  Co.  v.  Green, 

72  N.  Y.  20  472 

AA'ilcox  V.   Parmelee,  3  Sanford 

(N.  Y.),  610  _  337 

AA^ilde    V.    Merchants'    Dispatch 
Trans.  Co.,  47  la.  272        '   63,  231 
495 


TABLE   OF    CASES. 


SECTION 

Williams  v.  Branson,  1  Murplicy 

(N.  C),    417        131,  275 
V.  East    India   Co.,    3 

East,  192  246 

V.  Grant,  1  Conn.  487, 

492  185,  188,  191, 

194,  275 
V.  M.  &W.  R.  R.  Co., 

93  N.  C.  42  167,  432 

V.   Vanderbilt,    28   N. 

y.  217  199 

Willis  V.  Grand    Trunk    R.    R. 

Co.,  62  Me.  488  119 

Wilraerdins    v.    Hart,     Hill    & 

Denio  (Suppl.),  305     518,  520,  530 
Wilson  V.  Adams  Exp.  Co.,  27 

Mo.,  App.  360  414 

V.    Chesapeake,  etc.,  R., 
21  Giatt.   (Va.)  654, 

138,  345 
V.    General   Mutual   Ins. 
Co.,      12      Cush.     66 
(Mass.)  360  210 

V.    Hamilton,    4    0.    St. 

723  217,  220 

V.  Harry,  8  Casey  (Pa.), 

270  348 

V.  N.  y.  C.  &  N.  R.  R. 

Co.,  27  Hun,  149  129 

V.  Xantlio,  L.  R.  12  App. 

Cas.  503  213 

Wiltse  V.  Barnes,  46  Iowa,   210     382 
Wing  V.  N.  Y.  &  Erie   R.    R. 

Co.,  1  Hilton  (N.  Y.),  235  234 

Winston  r.  Cox,  38  Ala.  268  404 

Winter  v.  Cort,  7  N.  Y.  288  491 

Winterport  G.  &  B.  Co.  v.  Schr. 

Jasper,  1  Holmes,  99  32 

Wisconsin  Ins.  Co.  v.  The  Bank, 
21  Up.  Can.  Q.  B.  284; 
affirmed  2  Up.  Can.  Error 
and  Appeal  Rep.  282  521,  525 

Wise  V.  Great  Western  R'way 
Co.,  25  L.  J.  Ex.  258;  1  H. 
&N.  63  100,222 

Wiseman  v.  Vandeputt,  2  Ver- 
non, 202  532 
Witbeck   r.  Holland,  55    Barb. 

(N.  Y.)  443  350 

V.   Schuyler,  44  Barb. 

(N.  Y.)  469  9,  177 

Wolf  V.  American  Express  Co., 

43  Mo.  421  193,  234 

V.  Dietzsch,  75  111.  205  471 

496 


BECTION 

Wolf  V.  Houjrli,  22  Kansas,  659      360 
V.  Meyers,  3  Sanford,  7       2,  64 
Wood  V.  Berry,  1  Wright  (Ohio), 

240  14,  48 

17.  Str.  Fleetwood,  27  Mo. 

159  ^  372 

Woodburn  v.  Railroad    Co.,  40 

Fed.  Rep.  731  151 

Wooden  v.  Austin,  51  Barb.  9         261 
Woodruff i>.  Nashville, etc., R. Co., 
2    Head    (Tenn.), 
87  479,  491 

V.     Sherrard,     9    Hun 

(N.  Y.),  322  151 

AVooleip  &  Curties,  1  Inst.  89 
a  ;  1  Roll's  Abr.  2  ;  Actions  sur 
Case,  c.  pi.  4  294 

Woolsev   V.    Cenas,    1    Martini 

(La.),  26  480 

Wooster      v.     Tarr,     8      Allen 

(Mass.),  270  368 

Worth    V.    Edmonds,   52    Barb. 

(N.  Y.)  40  190 

Wright  V.  Campbell,  4  Buitow, 

2051  493 

V.    Clu.xton,   31    U.    C. 

Q.  B.  246  411 

V.  Gaff,  6  Ind.  416      114,  261 
V.  Holcombe,  6    U.  C. 

C.  P.  Rep.  531  83 

V.  N.  C.  R.  R.  Co.,  8 
Phila.  19  344 

Wyld  V.  Pickford,  8  M.  &  W. 

443  100 

VVyman  v.  C.  &  A.  R.  R.  Co., 
4  Mo.  App.  Rep.  35    323,  328,  329 


Y^ork  Co.  V.   Central    R.  R.,  3 

Wall.  107  103,  159,  223 

Young  V.  East  Ala.  R.  Co.,  80 

Ala.  100  461 

V.  Moeller,  5    E.    &   B. 

755  356 


Zerega  v.  Poppe,  1  Abbott  Adm. 

397  49,  253 

Zipsv  V.  Hill,  Foster  &  Finlason, 

573  180 


INDEX. 


[references  are  to  the  sections.] 


ACCEPTANCE: 

of  the  bill  by  shipper  is  assent  to  its  terms,  150. 

shipper  should  read  bill  before  accepting,  151,  152,  153,  154,  155,  156. 

assent  is  presumed  where  shipper  is  familiar  with  terms  of  bill,  158. 

authority  of  agent  delivering  goods  to  bind  shipper,  159. 
ACCIDENTS  OF  ENGINES,  effect  of  exception,  204. 
ACCIDENTS  OF  MACHINERY, meaning  of  exception,  204. 
ACCIDENTS  OF  STEAM,  effect  of  e-xception,  203. 
ACT  OF  GOD  : 

is  not  excluded  by  expressed  exceptions,  184. 

definition,  188,  189. 

losses  within  the  exception,  190,  191. 

losses  not  within  the  exception,  192. 

act  of  God  the  proximate  cause,  193. 

negligence  and  act  of  God  concurring,  194,  195. 

delay  and  act  of  God  concurring,  196. 

deviation  and  act  of  God  concurring,  197,  198,  199. 

duty  to  protect  goods  after  damage  by,  200. 

inevitable  accident  not  synonymous  with,  201,  202. 

may  include  loss  by  jettison,  247. 
ADVERTISEMENT,  limitation  of  liability  to  a  specific  amount  by,  142. 
AGENT : 

authority  of  agent  delivering  goods  to  bind  shipper,  159. 

knowledge  of  agent  as   to  manner  of  shipping  is  knowledge  of  shipper, 
160. 

contract  made  by  agent  in  his  own  name  benefits  real  owner,  162. 

principal  must  adopt  agent's  contract  as  a  whole,  163. 

carrier  having  dealt  with  agent  cannot  deny  agent's  authority,  164, 

effect  of  shipment  by  agent  of  consignee,  165. 

bill  executed  by  agent  of  carrier,  166. 

agent  not  authorized  to  sign  bill  for  goods  not  received,  167,  168. 

agent  of  carrier  must  be  authorized  to  sign  bills,  169,  170,  171. 

instructions  to  carrier's  agent  do  not  bind  shipper,  172. 

effect  of  agreement  by  agent  to  make  immediate  delivery,  173. 

limitation  of  agent's  power  to  make  special  contract,  173. 

32  497 


INDEX. 

AGEIHT— (continued). 

agreement  of  ticket  or  passenger  agent  to  watch  for  arrival  of  goods,  175. 
personal  responsibility  for  making  contract  beyond  authority,  175. 
carriers  other  than  the  first  of  a  series  are  the  agents  of  the  first  under  bill 

for  through  carriage,  324. 
■where  bill  says  privilege  of  reshipping  second  carrier  has  lien  on  goods  for 

freight,  354. 
carrier  not  liable  on  bill  issued  by  agent  without  receiving  goods,  428,  429, 

430. 
unauthorized  delivery  of  bill  by  an  agent  confers  no  title,  469. 
exception  where  apparent  ownership  is  intended,  4  70. 
making  goods  deliverable  to  vendor's  agent  is  j)n/na/acte  evidence  of  in- 
tention to  reserve  j'u.9  disponendi,  484. 
"ALL  HAIL,"  omission  of  these  words  from  bill,  67. 
AMBIGUITY,  parol  testimony  admissible  to  explain,  69. 
ASSENT  : 

acceptance  of  bill  by  shipper  assent  to  its  terms,  150  et  seq. 
not  presumed  as  to  limitations  indorsed  on  the  bill,  157. 
presumed  where  shipper  is  familiar  with  terms  of  bill,  158. 
ASSIGNEE: 

master  estopped  from  denying  truth  of  statements  in  bill,  as  against  as- 

sitrnee  for  value  when  acting  within  scope  of  his  authority,  180. 
of  bill  for  value,  liable  for  freight,  366. 
assignee  of  bill  agent  of  owners  not  liable  for  freight,  307. 
carrier  not  liable  to,  on  bill  issued  by  agent  without  receiving  goods,  428 

et  seq. 
bills  of  lading  act  in  England,  430. 
ASSOCIATION   OF    CARRIERS,   effect  of  such   association   upon  their 

liability,  345,  346. 
AT  SHIP'S  RISK,  meaning  of  exception,  318. 

BANK  BILLS,  are  not  "goods,  freight,"  etc.,  21. 
BARRATRY : 

definition  of,  205. 

eflect  of  exception,  205. 

acts  held  to  be  barratrous,  206. 

loss  by  not  covered  by  exception  perils  of  the  sea,  272. 
BILLS  OF  LADING  :       • 

definition  of,  1. 

what  are  not,  2. 

kinds  of,  3. 

contents  of,  4.  ,        * 

original  parties  to,  5. 

by  whom  given,  6. 

contracts  for  diminished  liability,  11. 

offices  of  the  bill,  13. 

498 


INDEX. 

BLOCKADE.     See  Restraint  of  Princes. 

attempting  to  run,  is  barratrous  act,  206. 
BOATS.     See  Risk  of  Boats. 
BREAKAGE: 

meaning  of,  exception,  251. 

effect  of  negligence  on  the  exception,  253. 

CAPTION,  js  a  part  of  the  bill,  71. 
CARRIER: 

benefit  of  limitation  of  liability  to  specific  sum,  to  carriers  other  than  the 

one  giving  the  bill,  145. 
bill  executed  by  agent  of,  166. 

liability  on  bills  signed  for  goods  not  received,  167,  168. 
a<Tent  of,  must  be  authorized  to  sign  bill  in  order  to  bind  the  carrier,  169, 

170,  171. 
instructions  to  carrier's  agent  will  not  bind  shipper,  172. 
effect  of  agent's  agreement  to  make  immediate  deliver)',  173. 
limitation  of  agent's  power  to  make  special  contract,  174. 
oblif^ation  to  feed  and  water  live  stock,  254. 

obligation  to  furnish  proper  means  of  transportation,  256,  257,  258. 
duty  to  protect  goods  after  damage  by  perils  of  the  sea,  278. 
right  of  carrier  by  land  to  sell  perishable  goods,  289. 
obligation  of,  when  legal  seizure  is  made  of  goods,  301. 
may  contract  to  carry  beyond  his  own  line,  323. 
other  than  the  first  is  agent  of  the  latter,  324. 
first  carrier  liable  to  destination,  325. 
first  carrier  may  limit  liability  to  his  own  line,  326. 
contract  to  carry  beyond  carrier's  own  line  expressed  or  implied,  327. 
receipt  of  goods  marked  to  be  delivered  beyond  carrier's  own  line,  328. 
receipt  of  such  goods  by  one  of  an  association  of  carriers,  329,  330. 
intermediate  carrier  must  deliver  to  next  succeeding  carrier,  342. 
carrier  in  possession  of  goods  when  destroyed,  liable,  343. 
carrier  may  show  in  defence  misconduct  of  preceding  carrier,  344. 
association  of  carriers  for  through  transportation,  345.    . 
to  hold  final  carrier,  delivery  to  first  carrier  in  good  condition  must  be 

shown,  346. 
limitation  of  liability  in  bill  of  first  carrier  enures  to  succeeding  carriers, 

348,  349. 
succeeding  carriers  not  benefited  by  contract  of  first  carrier  may  enure  to 

the  latter's  behalf,  350. 
refusal  to  give  bill  unless  freight  previously  paid,  363. 
duty  as  to  delivery  under  bill  for  goods  shipped  C.  O.  D.,  382,  383,  384, 

385. 
delivery  by  vessel  at  wharf,  400-406. 
wrong  delivery  by.  vessel,  407-409. 
delivery  by  carrier  on  land,  410. 

499 


INDEX. 

CARRIER— (coiitimiefl). 

not  liable  on  bill  issued  for  goods  not  received,  428-435. 

statutes  provide  that  bill  shall  be  conclusive  evidence  of  receipt  of  goods, 
435. 

may  be  compelled  to  disregard  his  baiior's  title  and  recognize  that  of  true 
owner,  464. 

manner  in  which  bailor  obtains  possession  of  goods,  whether  fraudulently 
or  in  good  faith  material,  466,  467,  468. 

when  carrier  need  require  no  indorsement  of  bill  to  warrant  delivery,  495. 

right  to  limit  common  law  liability.     See  Limitation. 
CHARGES,  construction  of  the  phrase,  358. 
CHARTER  PARTY : 

reference  to  terms  of,  in  bill  of  lading,  73,  74. 

obligations  of  owners  as  to  stowage,  244. 

provision  in,  respecting  demurrage,  357. 
"CLEAN"  BILL: 

definition,  3. 

imports  that  goods  are  to  be  stowed  on  deck,  85. 

parol  evidence  to  vary  such  bill  inadmissible,  85. 
C.  O.  D. : 

testimony  to  explain  meaning  of,  admissible,  69. 

authority  of  agents  of  carriers  to  contract  C.  O.  D.,  173. 

carrier's  duty  under  bill  for  goods  so  shipped,  382,  383,  384,  385. 
COLLATERAL  SECURITY.     See  Pledgee. 
COLLISION  : 

loss  by,  is  not  by  act  of  God,  192. 

is  said  to  be  included  in  perils  of  the  sea,  212. 

conditions  under  which  collision  may  arise,  212,  213. 

duty  to  protect  goods  after  collision,  214. 

not  presumptively  due  to  negligence,  215. 
COMMON  CARRIERS,  who  are,  7,  8,  9,  10.     See  Carrier. 
CONFEDERATE  INSURGENTS,  held  public  enemies,  293. 
CONFLICT  OF  LAWS : 

general  rules  as  to  the  Law  that  governs  construction  of  bill,  89-99. 
CONNECTING  CARRIERS.     See  Contract,  Carrier. 
CONSIGNEE: 

goods  sent  to  two  consignees  jointly,  delivery  to  either  is  delivery  to  both, 
414. 

bill  of  lading  is  prima  facie  evidence  of  his  title,  417. 

the  bill  constitutes  evidence  of  insurable  interests,  418. 

hill  prima  facie  evidence  of  his  title,  471,  472,  473,  474. 

prima  facie  owner  though  carrier  paid  by  consignor,  475. 

may  sue  without  delivery-  of  bill  when  consignor  releases  title,  47  7. 

or  upon  reindorsement  of  bill,  478. 

consignment  not  conclusive  evidence  of  title  in  consignee,  479,  480,  481. 

pledgee's  rights  are  paramount  to  those  of  consignee,  516,  517,  518. 

500 


INDEX. 

CONSIGNEE— (con^mwe^). 

a"^reement  with  shippers  shall  be  property  to  payment  of  consignor's  debt 
immaterial,  519. 

ignorance  of  pledge  immaterial,  520. 

cannot  clain^  possession  until  he  accepts  or  pays  draft,  528. 

pledgee  liable  in  damages  for  refusal  to  deliver  upon  consignee's  accept- 
ance or  payment  of  draft,  529. 

pledgee's  right  not  divested  by  consignee's  obtaining  possession  of  goods 
without   acceptance  or  payment  of  draft,  nor  by  consignee's  own  de- 
livery of  goods  where  in  trust  for  redemption  by  pledgee,  531. 
CONSIGNOR.     See  Shipper. 

vendor  shipping  at  direction  of  consignee,  acts  as  latter's  agent,  165. 
CONSTRUCTION: 

rules  for  construing  bill.     See  Contract,  Conflict  of  Laws. 

exception  fire  to  be  strictly  interpreted,  230. 

of  statutes  relating  to  negotiability  of  bill,  452,  453,  454. 
CONTEMPORANEOUS  PAROL  AGREEMENTS.     See  Contract. 
CONTENTS,  of  a  bill  of  lading,  4. 
CONTENTS  UNKNOWN: 

elTect  of  phrase  as  affecting  description  of  goods,  54,  55. 
CONTENTS  AND  GAUGE  UNKNOWN,  effect  of  phrase,  56.   ■ 
CONTENTS  AND  VALUE  UNKNOWN,  effect  of  phrase,  57. 
CONTENTS  AND  WEIGHT  UNKNOWN,  effect  of  phrase,  59. 
CONTRACT: 

bill  of  lading  is,  63. 

as  such  cannot  be  varied  by  parol  proof,  64. 

nor  by  contemporaneous  verbal  agreement,  65. 

verbal  agreement  not  merged  where  terms  are  omitted  by  mistake,  66, 
67,  68. 

parol  evidence  admissible  to  explain  ambiguities,  69,  70. 

contract  to  be  gathered  from  whole  instrument,  71,  72. 

reference  in  bill  to  charter  party,  73,  74. 

written  prevail  over  printed  provisions  of  bill,  75,  76. 

bill  construed  according  to  intention,  77. 

the  bill  construed  with  refei-ence  to  usage  and  custom,  78,  79,  80,  81. 

te»ms  of  bill  varied  by  custom  or  technical  meaning,  82. 

usage  as  to  course  of  voyage,  83. 

usage  in  conflict  with  positive  law,  84. 

bill  construed  with  reference  to  custom  as  to  stowage,  85,  86,  87,  88. 

extent  to  which  carrier  can  limit  his  liability,  101-141. 

made  by  agent  in  his  own  name  benefits  real  owner,  162. 

principal  must  adopt  agent's  contract  as  a  whole,  163. 

by  master  must  be  within  scope  of  his  authority,  177. 

carrier  may  contract  to  carry  beyond  his  own  line,  323. 

first  carrier  liable  to  destination,  325. 

first  carrier  may  limit  liability  to  his  own  line,  326. 

501 


INDEX. 

CO'ST'R  ACT— (continued). 

contract  to  carry  beyond  own  line  expressed  or  implied,  327. 

-what  are  contracts  to  carry  "through,"  331,  332. 

effect  of  contract  to  forward,  333,  334,  335,  336. 

carrier  contracting  to  forward,  liable  to  end  of  route,  33?,  338. 

liability  is  limited  to  carrier's  own  line  by  contract,  339,  340,  341. 
CREAV,  acts  of,  held  to  be  barratrous,  206,  207,  208. 
CUSTOM : 

rules  for  construing  bill  with  reference  to.     See  Contract. 

effect  of,  on  master's  authority  to  sign  bills  for  goods  not  received,  180. 

effecting  deck  stowage,  239. 

parol  evidence  of  agreement  to  carry  on  deck  not  admissible,  250. 

effecting  interpretation  of  exception  perils  of  the  sea,  271. 

cannot  be  introduced  to  prove  loss  by  rats  to  be  considered  peril  of  the 
sea,  298. 

effect  of  on  delivery  of  goods,  398,  399. 

DAMAGE  BY  MACHINERY,  effect  of  exception,.  203. 

DAMAGES,  limitation  of  liability  to  specific  sum.     See  Limitation. 

DANGEROUS  GOODS,  stipulations  in  bill  relating  to,  243. 

DANGP:RS  OF   LAKE  NAVIGATION,  what  included  in  exception,  216. 

DANGERS  OF  THE  SEA,  meaning  of  phrase,  216. 

DAYS,  meaning  of  as  used  in  bill,  80. 

DECK  UOAD,  carrier's  liability  for,  249. 

DECK  STOWAGE:,  what  is  meant  by,  239. 

DEFICIENCY  IN  QUANTITY,  meaning  of  phrase,  31. 

DEFINITION  : 

of  a  bill  of  lading,  1. 

what  are  not  bills  of  lading,  2. 

"clean"  bill,  3. 

who  are  common  carriers,  7,  10. 

of  the  word  package,  22.  ..  !.^ 

act  of  God,  188,  189. 

barratry,  205. 

fire,  223. 

from  whatever  cause,  238. 

jetttison,  247. 

perils  of  the  sea,  266,  267. 

ullage,  282. 

who  are  public  enemies,  292.  , 

restraint  of  princes,  304. 
DELAY : 

and  act  of  God  concurring,  196. 

freezing  after  delay,  235. 

by  preceding  carrier,  236,  237. 

caused  by  strike,  313. 

by  an  armed  mob,  314,  315. 

502 


INDEX.  , 

DELIVERY : 

stipulations  relating  to,  382  et  seq. 

surrender  of  the  bill  before  delivery  of  goods,  397. 

effect  of  custom  on  delivery  of  goods,  398,  399. 

delivery  by  vessel  at  wharf,  400,  401,  402,  403,  404,  405,  406. 

wrong  delivery  by  a  vessel,  407,  408,  409. 

delivery  by  carrier  on  land,  410. 

place  of  delivery,  411. 

time  of  delivery,  412. 

acceptance  by  consignee,  413. 

person  to  whom  delivery  is  to  be  made,  414. 

effect  of  marks  on  goods  upon  stipulations  in  bill,  415. 

delivery  of  bill  is  delivery  of  goods  witiiin  statute  of  frauds,  420. 

when  carrier  need  require  no  indorsement  of  bill,  495. 

indorsement  of  tlie  bill  must  accompany  delivery  to  pledgee   to  defeat 
right  of  stoppage,  54  7. 
DELIVERY  TO  CARRIER: 

bill  not  conclusive  evidence  of  delivery,  15,  16. 
is  prima  facie  evidence  of  such  delivery,  17. 

effect  of  bill  executed  before  reception  of  the  goods,  18. 
DEMURRAGE: 

stipulation  as  to  payment  of  in  bill,  355. 

effect  of,  355. 

liability  for  where  bill  contains  no  stipulation,  356. 

provision  in  charter  party  as  to,  357. 
DESERTION  OF  SEAMEN,  loss  by,  not  covered  by  exception  perils  of 

the  sea,  272. 
DEVIATION,  and  act  of  God  concurring,  197,  198. 
DRAYMEN  are  common  carriers,  9. 

EARTHQUAKE,  loss  by,  is  by  act  of  God,  190. 
EMBARGO.     See  Restraint  of  Princes. 

disregarding  an  embargo  is  barratrous  act,  206. 
EMBEZZLEMENT: 

loss  by  is  not  covered  by  exception  owner's  risk,  261. 
exception  perils  of  the  sea,  272. 
ENDORSEMENT: 

shipper's  assent  to  limitations  endorsed,  not  presumed,  157. 

assent  is  presumed  where  shipper  familiar  with  terms,  158. 
•    where  bill  is  endorsed  in  blank,  no  title  is  vested  until  blank  is  filled,  480. 
ENEMIES  OF  THE  STATE.     See  Public  Enemy,  292. 
ESCAPES,  meaning  of  phrase,  217,  218,  219,  220,  221,  222. 
EVIDENCE: 

parol  evidence  admissible  to  explain  ambiguities  in  bill,  69,  70. 

cannot  vary  contractual  terms  of  bill,  64. 
EXECUTION  of  bill  of  lading.     See  Agent,  Master. 

503 


INDEX. 

EXPLOSION : 

loss  by  is  not  by  act  of  God,  192. 

fire  caused  by  is  within  exception  fire,  224. 
EXPLOSION  OF  BOIJ^ER,  loss  by  not  covered  by  exception  perils  of  the 

sea,  272. 
EXPRESS  COMPANIES  are  common  carriers,  8. 
EXPRESSIO  UNIUS,  ETC.,  meaning  of  phrase,  184,  185,  186,  187. 

FACTOR.     See  Agent. 
FIRE : 

loss  by,  is  not  by  act  of  God,  192. 

not  included  in  exception  act  of  God,  except  lightning,  223. 

under  exceptions  unavoidable  dangers,  perils  of  the  sea,  223. 
what  is  loss  by,  224. 

incident  to  other  loss  exception  does  not  apply,  225. 
exception  .does  not  relieve  from  negligence,  226. 
burden  of  proving  loss  within  exception,  227,  228,  229. 
exception  to  be  strictly  interpreted,  230. 

coextensive  with  liability,  231. 
legislation  affecting  exception,  232,  233. 
is  not  included  in  exception  perils  of  the  sea,  272. 
FLOOD,  loss  by,  is  by  act  of  God,  1 90. 
FORWARD,  effect  of  contract  to  forward,  333,  334. 
FORWARDER : 

must  follow  shipper's  instructions,  335. 

in  absence  of  instructions  must  forward  by  usual  conveyance,  336. 

carrier  contracting  to  forward  is  liable  to  end  of  route,  337. 

cannot  escape  liability  by  calling  himself  forwarder  only,  338. 
FRAUD: 

terms  of  bill  may  be  avoided  or  modified  by  showing  fraud  in  execution 
of  bill,  68. 
FREEZING: 

loss  by,  is  by  act  of  God,  190. 
effect  of  exception,  234. 
after  delay,  235. 

by  preceding  carrier,  236. 
FREIGHT : 

is  the  consideration  paid  for  transportation,  12. 

reduced  freight  good  consideration  for  diminishing  carrier's  common  law 

liability,   101. 
master  cannot  sign  bills  for  lower  rate  than  ship-owner  contracted  for,  1  79. 
has  no  authority  to  make  freight  payable  to  any  other  than  the  owner, 
179. 
receipt  of  full  freight  to  point  of  delivery  held  evidence  of  through  con- 
tract, 331. 
effect  of  clause  privilege  of  reshippingon  second  carrier's  lien  for  freight,  354. 

504 


INDEX. 

FREIGHT— (co)itinued). 

effect  of  stipulations  in  bill  as  to,  359. 

effect  of  clause  "Freight  charges  paid  through"  on  right  of  last  carrier 

to  his  lien,  360. 
lien  for  freight  lost  if  goods  were  injured  by  carrier's  negligence,  361. 
goods  of  one  shipper  not  liable  for  charges  on  goods  of  another  if  shipped 

under  same  bill,  362. 
lien  for  freight  and  charges  not -invalid  because  carrier  claims  more  than  is 

due,  362. 
person  to  whom  payable,  363. 

consignee  not  liable  where  bill  is  indorsed  to  other  parties,  365. 
person  by  whom  payable,  364,  365,  366,  36  7,  368. 
effect  of  clause  "  He  (the  consignee)  paying  freight"  and  similar  clauses, 

369. 
effect  of  clause  "  Delivery  upon  payment  of  freight,"  370. 
refusal  to  give  bill  unless  freight  be  previously  paid,  371. 
amount  of  freight  due,  372. 

payable  upon  "  net  weight  delivered,"  373. 
promise  to  pay  reasonable  freight  implied  by  law,  374. 
not  necessary  to  specify  amount  in  bill,  374. 
right  to  set  off  damages  against  claim  for  freight,  375. 
for  goods  delivered  short  of  destination,  376. 
for  goods  underclassed,  377. 
when  due,  378,  379. 

specific  stipulations  contained  in  bill  judicially  construed,  380,  381. 
FREIGHT  CHARGES  PAID  THROUGH.     See  Freight. 
FREIGHT  PAYABLE  IN  LONDON,  testimony  to  show  meaning  of,  in- 
admissible, 70. 
"FREIGHT  SAME  AS  LOWEST,  TO   POINTS  NAMED,"  meaning 

of  phrase,  381. 
FROM  WHATEVER  CAUSE: 
definition  of,  238. 

synonymous  with  owner's  risk,  general  release,  inevitable  accident,  238. 
FROM  WHATEVER  CAUSE  ARISING: 
extent  to  which  phrase  relieves  carrier,  101. 

GENERAL  RELEASE.     See  From  Whatever  Cause. 
GOOD  CONDITION.     See  Good  Order,  etc. 

to  hold  final  carrier  for  injury,  delivery  to  first  carrier  in  good  condition 
must  be  shown,  346. 

goods  shipped  in  good  condition  presumed  to  remain  so  until  delivery  to 
final  carrier,  347. 
GOOD  ORDER  AND  CONDITION : 

effect  of  phrase,  43. 

refers  to  external  condition,  44,  45,  46.  ■  • 

statement  of  condition  not  conclusive,  47,  48. 

505 


INDEX. 

GOOD  ORDER  AND  CONDITION— (con^mwerf). 

statement  \s  prima  facie  evidence  of  condition  and  puts  onus  on  carrier  to 

disprove,  49. 
effect  of  promise  to  deliver  in  good  condition,  50, 
effect  of  phrase  "  apparent  pood  condition,"  51,  52. 
GOODS   CARRIED    ON    DECK   AT    SHIPPER'S  RISK,  meaning  of, 
239. 

HEAT,  the  result  of  defective  stowage,  242. 
HEAT,   SUFFOCATION,  effect  of  exception,  241. 
HIGH  WIND,  loss  by,  is  by  act  of  God,  190. 
HOGS,  injury  to,  by  heat  or  suffocation,  240. 
HOLDER : 

of  bill  not  bound  to  give  notice  of  his  title,  427. 

bill-holder's   title   not   validated   by   want   of  notice   to  carrier  by  true 
owner,  465,  466. 

rights  of  holder,  of  different  parts  of  bill  issued  in  sets,  455,  456,  457, 
458,  459. 

INDIANS,  are  public  enemies,  292. 
INDORSEE.     See  Pledgee. 
INDORSEMENT,  transfer  of  bill  by,  493. 
INEVITABLE  ACCIDENT.     See  From  Whatever  Cause. 
INHERENT  NATURE  OF  GOODS,  carrier  is  not  liable  for  loss  the  re- 
sult of,  279. 
INJURIES  TO  UNRULY  ANIMALS.     See  Live  Stock. 
INJURIOUS  EFFECT  OF  OTHER  GOODS: 

meaning  of  stipulation,  243. 

loss  bj',  not  covered  by  exception  perils  of  the  sea,  272. 
INJURY  TO  PERISHABLE  GOODS,  meaning  of  phrase,  279,  281,  282. 
INLAND  NAVIGATION,  effect  of  exception  perils  of  the  sea  in,  268. 
INSURABLE  INTEREST,  bill  is  evidence  of,  in  cargo  in  prize  courts,  418, 

419. 
INTERMEDIATE  CARRIER.     See  Carrier. 

JETTISON: 

effect  of  exception,  247. 

effect  of  negligence  in  case  of  loss  by,  248. 

effect  of  exception  in  respect  to  goods  carried  on  deck,  250. 

KING'S  ENEMIES.     See  Public  Enemy,  292. 

LACK  OF  FOOD  AND  WATER,  meaning  of  exception,  254. 

LAW  OF  THE  COURT,  how  applicable  to  questions  arising  on  bills,  99. 

LEAKAGE: 

meaning  of  exception,  251. 

effect  of  negligence  on  exception,  252. 

506 


INDEX. 

LEGAL  PROCEDURE.     See  Restraint  by. 

LEX  FORI,  how  applicable  to  questions  arising  on  bills,  99.  ^ 

LEX  LOCI  CONTRACTUS,  when  applicable  to  terms  of  bill,  89. 

LEX  LOCI  SOLUTIONIS,  when  applicable  to  terms  of  bill,  89. 

LIABILITY,  limitation  of,  to  specific  sum.     See  Limitation. 

LIEN  FOR  FREIGHT.     See  Freight. 

LIGHTNING : 

loss  by,  is  by  act  of  God,  190. 

fire  by,  covered  by  exception  act  of  God,  223. 

is  not  a  peril  of  the  sea,  274. 
LIMITATION : 

right  of  carriers  to  limit  their  common  law  liability  in  England,  100. 

reduced  freight  good  consideration  for  diminished  liability,  101. 

rules  laid  down  by  Federal  Courts,  10.3,  104. 

the  rule  as  laid  down  in  the  several  states,  105-141. 

of  liability  to  a  specific  amount  by  notice  and  advertisement,  142,  143. 

of  liability  to  specific  amount  by  terms  of  bill,  144. 

benefit  of  limitation  to  specific  amount  to  carriers  other  than  the  one 
giving  the  bill,  145. 

eflfect  of  limitation  to  specific  amount  where  shipper  is  silent  as  to  real 

value,  146. 
effect  of  limitation  to  specific  amount  where  several  articles  are  included 

in  one  package,  147. 

limitation  to  specific  amount  does  not  relieve  from  negligence,  149. 

of  carrier's  liability  by  secret  instructions  to  agent,  172. 

effect  of  stipulation  when  claim  for  loss  to  be  made  within  limited  time, 
386,  387,  388,  389,  390. 

claim  to  be  made  in  30  days  held  reasonable.  393,  394. 

claim  to  be  made  at  a  particular  office,  391. 
LIVESTOCK: 

are  carriers  of  animals  common  carriers?  217. 

effect  of  clause  "lack  of  food  and  water"  in  bill,  254. 

effect  of  exception  "  owner's  risk,"  263. 
LOADING  OR  UNLOADING  : 

effect  of  phrase,  255. 

obligation  to  furnish  suitable  means  of,  256,  257,  258. 

stipulation  as  to  loss  does  not  apply  to  delivery  to  wrong  person,  414. 
LOSS  BY  DECAY,  meaning  of  phrase,  279,  281,  282. 
LOSS  BY  DETERIORATION,  meaning  of  phrase,  279,  281,  282. 
LOSS  BY  PIRATES.     See  Pirates. 
LOSS  BY  RATS.     See  Rats. 

LOSS  BY  ROBBERY.     See  Robbers  and  Thieves. 
LOSS  BY  VERMIN.     See  Vermin. 

LOSS  ON  THE  LAKES,  does  not  include  loss  of  goods  in  a  wharf-boat,  274. 
LOSS  OR  DAMAGE,  claims  for  non-delivery  not  covered  by,  392. 
LOSSES  BY  PUBLIC  ENEMY.     See  Public  Enemy. 

507 


INDEX. 

MARKS : 

on  packages  copied  in  bill  cannot  contradict  terms,  72. 

obligation  of  shipper  to  mark  plainly,  259. 

eflifct  of  exception  on  obliteration  of  marks,  259. 

effect  of  receipt  of  goods  marked  to  be  delivered  beyond  carrier's  own  line, 
328,  329. 

effect  of  marks  on  goods  upon  stipulations  in  bill,  415. 
MASTER: 

need  not  sign  as  such  if  so  described  in  body  of  bill,  176. 

authority  of,  to  sign  bills,  176. 

contract  of,  must  be  within  scope  of  his  authority,  17  7. 

secret  instructions  to,  do  not  bind  shipper,  178. 

cannot  sign  bills  for  lower  rate  than  ship-owner  contracted  for,  179. 

has  no  authority  to  sign  bills  for  goods  not  received,  180,  181. 

personal  liability  of,  under  bill,  183. 

what  is  barratry,  205. 

acts  held  to  be  barratrous,  206,  207,  208. 

obligation  to  protect  goods  after  damage  by  collision,  214. 

duty  to  open  packages  in  order  to  save  damaged'goods,  286. 

duty  in  regard  to  sale  of  injured  goods,  287. 

master  should  communicate  with  owners,  288. 

is  entitled  to  receive  freight,  363. 

has  no  power  to  draw  bills  making  freight  payable  to  other  than  the  owner, 
363. 
MISDESCRIPTION : 

of  goods  in  bill,  19. 

inducing  less  degree  of  care,  20,  21,  22. 

to  secure  lower  rate  of  freight,  23. 

by  the  carrier,  24. 
MISTAKE,  omission  of  terms  of  bill  by,  66. 
MOB,  fire  caused  by,  229. 

MONEY,  receipt  of,  by  master  binds  owner,  178. 
MORE  OR  LESS,  effect  of  phrase,  32. 
MUNIMENT  OF  TITLE,  bill  of  lading  is  muniment  of  title  of  goods,  416. 

NEGLIGENCE : 

carrier  cannot  limit  his  liability  for  negligence,  100-141. 

limitation  of  liability  to  specific  sum  does  not  relieve  from,  149. 

act  of  God  and  negligence  concurring,  194,  195. 

proof  of  happening  of  collision  is  not  evidence  of  negligence,  215. 

exception  by  fire  does  not  relieve  from,  226. 

exception  owner's  risk  does  not  cover  loss  by,  261. 

causing  loss  In  connection  with  perils  of  the  sea,  275. 

exceptions  inherent  defect,  deterioration,  decay,  perishable  goods,  do  not 

include  loss  from  negligence,  283,  284,  285. 
effect  of,  on  exception  public  enemies,  295,  296. 

508  . 


INDEX. 

NEGLIGENCE— (conanwe^/). 

the  first  of  a  series  of  carriers  may  limit  liability  to  his  own  line  except 
for,  326. 

lien  for  freight  lost,  if  goods  injured  by,  361. 
NEGOTIABILITY : 

bill  not  negotiable  in  ordinary  sense,  438. 

nature  of  the, interest  for  title  of  which  bill  is  muniment,  439-443. 

statutes  relating  to  the  negotiability  of  bill,  441. 

construction  of  statutes  relating  to  negotiability,  4,52,  453,  454. 

rights  of  holders  of  different  parts  of  a  bill,  455,  456,  457,  458,  459. 

transfer  of  bill  by  delivery  containing  no  words  of  negotiability,  505,  506, 
507. 
NOTICE: 

limitation  of  liability  to  specific  amount  by,  142,  143. 

want  of  notice  to  carrier  as  to  true  owner  does  not  validate  the  holder's 
title,  465,  466. 

OBLITERATION  OF  MARKS,  effect  of  exception,  259. 
ORDER,  statement  of,  in  bill.     See  "  Good  Order,"  etc. 
OWNER,  acts  of,  may  sometimes  be  barratrous,  211. 
OWNER'S  RISK: 

extent  to  which  the  phrase  relieves  carrier's  liability,  105. 

synonymous  with  "from  whatever  cause,"  238. 

meaning  of  the  exception,  260. 

exception  does  not  cover  loss  by  negligence,  261. 

effect  of  fraud  or  misrepresentation,  262. 

effect  of  exception  on  carriage  of  live  stock,  263,  264. 

construction  of  exception  in  English  Courts  in  respect  to  carriage  of  live 
stock,  264. 

PACKAGE : 

definition  of,  22. 

effect  of  limitation  to  specific  amount  where  several  articles  are  included 
in  one  package,  14  7. 
PAROL  PROOF,  bill  cannot  be  varied  by,  when  regarded  as  a  contract,  64. 
PARTIES,  who  are  original  parties,  5. 
PERILS  OF  THE  SEA: 

such  exception  does  not  make  a  ship-owner  liable  for  loss  by  fire  by  neg- 
ligence.    Act  of  Congress  3d  March,  1851,  81. 

injuries  to  live  stock  covered  by,  222. 

do  not  include  loss  by  fire,  223. 

may  include  loss  by  jettison,  247. 

definition  of  the  exception,  266,  267. 

effect  of  exception  on  Inland  navigation,  268. 

what  are  perils  of  the  sea,  269,  270. 

custom  affecting  interpretation  of  the  exception,  271. 

509 


INDEX. 

PERILS  OF  THE  SEA— (continued). 

what  are  not  perils  of  the  sea,  272,  273,  2  74. 
negligence  and  perils  of  the  sea  causing  loss,  275. 
perils  of  the  sea  must  be  necessary  cause  of  loss,  276. 
effect  of  exception  on  goods  stowed  on  deck,  27  7. 
obligation  to  protect  goods  after  damage  by,  278. 
PERISHABLE  GOODS: 

meaning  of  the  phrase,  280. 
right  of  carrier  by  land  to  sell,  289. 
duty  of  master  to  open  packages,  286. 
duty  of  master  in  regard  to  sale  of,  287. 
PIRATES : 

loss  by  pirates  included  in  exception  perils  of  the  sea  and  king's  enemies, 

290. 
what  are  losses  by,  291. 
are  public  enemies,  292. 
PLEDGEE: 

character  of  title  by  pledgee  of  bill,  509,  510.  • 

pledgee  may  maintain  replevin,  511. 

title  is  paramount  to  right  of  pledgee,  512. 

no  title  passes  to  pledgee  unless  bill  is  delivered,  213. 

forwarding  bill  with  draft  attached  not  necessary,  514,  515. 

delivery  to  party  discounting  draft,  514,  515.      ' 

pledgee's  rights  paramount  to  those  of  consignee,  516,  517. 

pledgee's  rights  paramount  to  those  of  consignee  to  whom  consignor  is 

indebted  for  value  of  goods,  518. 
agreement  between  consignor  and  consignee  at  shipment,  519. 
consignee's  ignorance  of  pledge  immaterial,  520. 
pledgee's  title  conditional,  521. 

pledgee's  title  conditional  whether  transaction  is  mortgage  or  pledge,  522. 
pledgee's  title  to  be  defeated  by  acceptance  rather  than  payment  of  draft, 

523,  524. 
also  where  draft  has  been  sent  to  agent  for  collection,  525,  526. 
bill  may  be  made  security  for  payment  by  express  agreement,  527. 
consignee  can  claim  possession  until  he  accepts  or  pays  draft,  528. 
pledgee  is  liable  in  damages  for  refusal  to  deliver  upon  consignee's  accept- 
ance or  payment  of  draft,  529. 
pledgee's  right  not  divested  by  consignee's  obtaining  possession  without 

acceptance  or  payment,  530. 
nor  by  consignee's  own  delivery  of  goods  where  in  trust  for  redemption  by 

pledgee,  531. 
transfer  of  bill  to  pledgee  and  advance  of  money  need  not  be  absolutely 

contemporaneous,  542. 
PRIMAGE     AND     AVERAGE     ACCUSTOMED,    construction    of   the 

phrase,  358. 
PRIVATEERS  are  public  enemies,  292. 

510 


INDEX. 

PRIVILEGE  OF  RESHIPPING : 

effect  of  the  clause,  351. 

in  case  of  low  water,  352, 
PRIZE  COURTS,  bill  of  lading  is  evidence  of  insurable  interest  in  cargo  in 

prize  courts,  418,  419. 
PROXIMATE  CAUSE,  when  act  of  God  is,  193. 
PUBLIC  ENEMY: 

is  not  excluded  from  exception  by  expressed  exceptions,  1 84. 

may  include  loss,  by  jettison,  247. 

pirates  are,  292. 

who  are  public  enemies,  292,  293. 

what  are  not  losses  under  the  exception,  294. 

exception  will  not  avail  in  case  of  negligence,  295. 

QUANTITY: 

statement   of,    only  prima  facie  evidence   of   amount   between  original 
parties,  25. 

carrier  not  bound  by  statement,  26,  27,  28. 

shipper  not  bound  by  statement,  29. 

consignee  not  bound  by  statement,  29. 

effect  of  statement  on  burden  of  proof,  30. 
QUANTITY  AND  QUALITY  UNKNOWN,  effect  of  phrase,  60. 
QUANTITY  GUARANTEED: 

meaning  and  effect  of,  31. 

construction  of  phrase,  82. 
QUANTITY  UNKNOWN,  effect  of  phrase,  53. 
QUEEN'S  ENEMIES.     See  Public  Enemy. 

RAILROADS  are  common  carriers,  7. 

RAINY   DAYS,   testimony  admissible  to  show  in   what  sense  words  were 

used  in  bill,  69. 
RATS : 

loss  by,  not  covered  by  exception  perils  of  the  sea,  272. 

meaning  of  the  exception,  298. 
not  included  in  perils  of  the  sea,  298. 
RECEIPT  : 

bill  is  a  receipt,  14. 

as  a  receipt  may  be  varied  by  parol  between  original  parties,  14. 
is  receipt  for  goods  delivered  to  carrier,  17,  18. 
for  goods  improperly  described,  19. 
for   specific  weight  or  quantity  only  priina  facie  evidence  as   between 

original  parties,  25,  26,  27,  28,  29,  30. 
for  quantity  guaranteed,  31. 
effect  of  phrase  "  more  or  less,"  32. 
in  bill  containing  statement  of  value,  33  et  seq. 
statement  of  value,  33. 

511 


INDEX. 

HECEIVT— (continued). 

effect  of  qualifying  clauses  in  bill  of,  quantity,  quality,  contents  or  value 
unknown,  53  et  seq. 
REPLEVIN : 

pledgee  of  bill  has  such  property  in  goods  as  will  enable  him  to  maintain 
replevin,  511. 
REPRESENTATION,  bill  cannot  represent   goods   unless   issued    to   true 

owner,  461. 
RESHIPPING.     See  Privilege  of  Reshipping. 
RESTRAINT  BY  LEGAL  PROCEDURE  : 

necessity  for  such  exception,  300. 

obligation  of  carrier  when  legal  seizure  is  made,  301,  302,  303. 
RESTRAINT  OF  PEOPLE.     See  Restraint  of  Princes. 
RESTRAINT  OF  PRINCES: 

definition  of,  304. 

seizure  under  custom  laws  within  the  exception,  305. 

embargo,  blockade,  and  neutrality  edicts  within  the  exception,  306-308. 

effect  of  delay  by  quarantine  regulations,  309. 

synonymous  with  restraint  of  people,  310. 
RIOTS,  STRIKES,  AND  STOPPAGES  OF  LABOR: 

meaning  of  the  exception,  311,  312. 

delay  caused  by  strike,  313. 

by  an  armed  mob,  314-316. 
RISK  OF  BOATS,  meaning  of  the  exception,  317. 
ROADS,  meaning  of,  when  used  in  bills,  216. 

ROBBERS  AND  THIEVES,  meaning  of  the  exception,  319,.  320. 
RUST,  effect  of  the  exception,  321. 

"  SAID  TO  CONTAIN,"  meaning  of  phrase,  42. 

SEWING  MACHINES,  are  not  properly  described  as  hardware,  23. 

SHIFTING  OF  A  BUOY,  loss  by,  not  covered  by  exception  perils  of  the 

sea,  272. 
SHIP,  the  law  of,  when  applicable  to  bills  <of  lading,  97. 
SHIP  BROKER,  authority  to  sign  bills  of  lading,  182. 
SHIP  OWNERS,  are  common  carriers,  9. 
SHIPPER: 

effect  of  limitation  to  specific  amount  where  shipper  is  silent  as  to  real 

value,  146. 
acceptance  of  bill  by,  assent  to  its  terms,  150. 
should  read  bill  before  accepting  it,  151. 
assent  of  shipper  must  be  proved  in  Massachusetts,  152. 

in  Illinois,  153. 
statutory  enactment  as  to  acceptance  in  Dakota,  154. 
rule  as  to  assent  of  shipper  in  Georgia,  Michigan,  Maryland,  Ohio,  155, 

156. 
secret  instructions  to  master  do  not  bind  shipper,  1 78. 

512 


INDEX. 

SEIFFER— (continued). 

consent  of,  to  deviation,  199. 

effect  of  consent  to  have  goods  carried  on  deck,  249. 

obligation  to  mark  goods  plainly,  259. 

not  liable  for  freight  charges  on  goods  of  another  though  shipped  under 

same  bill,  3G2. 
promise  to  pay  reasonable  freight  implied  by  law,  374. 
right  to  set  off'  damages  against  claim  for  freight,  375. 
freight  for  goods  delivered  short  of  destination,  376. 

under-classed  by  shipper,  377. 
where  bill  is  issued  for  delivery  to  shippei-'s  order,  carrier  bound  to  de- 
liver to  no  one  without  order,  414. 
shipper's  property  is  sufficient  to  enable  him  to  maintain  action  for  failure 

to  deliver  goods,  47G. 
making  goods  deliverable  to  shipper's  order |)rtma/aeie  evidence  of  inten- 
tion to  reserve  ^Ms  dlsponendi,  482-484. 
presumption  strengthened  when  bill  is  pledged  to  secure  draft,  485. 
shipment  in  vendee's  vessel  does  not  conclusively  rebut  presumption  of 

reserved  control,  487,  488. 
reservation  oi  jus  disponendi  question  of  intention,  489,  490. 
where  consignee  is  consignor's  factor,  491,  492. 
SNOW  STORM,  loss  by,  is  by  act  of  God,  190. 
SPECIFIC  AMOUNT,  limitation  of  liability.     See  Limitation. 
STATION  AGENT,  authority  of,  to  contract  for  carriage  of  goods  beyond 

line,  175. 
STOPPAGES  OF  LABOR.     See  Riots. 
STOPPAGE  IN  TRANSITU: 

title  of  pledgee  in  bill  is  paramount  to  right  of  stoppage,  512. 
the  right  not  general,  532. 

defeated  by  transfer  of  bill  for  value,  533-535. 
not  defeated  where  transfer  is  fraudulent,  536. 
transferee's  knowledge  of  vendee's  insolvency  or  that  the  goods  were  not 

paid  for,  537. 
consideration  for  the  transfer  where  bill-holders  may  defeat  the  right,  538, 

539,  540,  541,  642,  543. 
right  of  stoppage  not  defeated  unless  bill  is  transferred,  547. 
notice  of  stoppage  after  vendee's  transfer,  548. 
STORM,  loss  by,  is  by  act  of  God,  190. 
STOWAGE  : 

bill  construed  with  reference  to  custom  as  to,  85,  86,  87,  88. 

goods  carried  on  deck  at  shipper's  risk,  239. 

heat  or  fermentation  result  of  defective  stowage,  242. 

liability  of  carrier  for  careful  and  prudent  stowage,  243. 

injurious  effect  of  other  goods,  243. 

dangerous  goods,  243. 

insufficientstowage,  243. 

33  513 


INDEX. 

STOWAGE— (continued). 

carrier's  liability  for  deck  load,  249. 

presumption  is,  goods  must  be  stowed  under  deck,  250. 

effect  of  bill  containing  exception  sweat  or  sweating,  322. 
STRIKE.     See  Riots. 

SUDDEN  SQUALL,  loss  by,  is  by  act  of  God,  190. 
SUFFOCATION,  loss  by,  240. 
SWEAT : 

loss  by,  is  peril  of  the  sea,  322. 

meaning  of  the  exception,  322. 
SWEATING  OF  THE  HOLD.     See  Sweat. 
SYMBOL : 

bill  of  lading  is  symbol  or  representative  of  goods,  417. 

duration  of  bill's  availability  as  symbol,  424,  425,  426. 

THEFT,  loss  by,  not  covered  by  exception  perils  of  the  sea,  272. 

THE  LAW  OF  THE  SHIP,  when  applicable  to  terms  of  bill,  97,  98. 

THIEVES.     See  Robbers  and  Thieves. 

THROUGH  CARRIAGE,  bill  of  lading  not  functus  officio  upon  arrival  of 

goods  at  termination  of  first  stage  of  transit,  426. 
THROUGH  CONTRACTS.     See  Contract. 
TIDAL  WAVE,  loss  by,  is  by  act  of  God,  190. 
TITLE : 

bill  of  lading  is  a  muniment  of,  416. 

a  symbol  or  representative  of  goods,  417. 

is  evidence  of  insurable  interest  in  prize  courts,  418,  419. 

bill  of  lading  is  means  of  transferring  title,  421. 

duration  of  bill's  availability  as  symbol,  424,  425,  426. 

holder  of  bill  not  bound  to  give  notice  of  his  title,  427. 

bill  gives  title  to  goods  received  by  carrier  subsequently  to  its  issuance, 
436. 

rule  not  affected  by  statutes  prohibiting  issuance  of  bill  after  receiving 
goods,  437. 

nature  of  title  of  which  bill  is  muniment,  439,  440,  441,  442. 

bill  IS  jjrima  facie  evidence  of  consignee's  title,  471,  472,  473. 

consignee  priina  facie  owner  though  carrier  be  paid  by  consignor,  475. 

consignor's  title  sufficient  to  enable  him  to  maintain  an  action  for  failure  to 
deliver  goods,  476. 

consignee  may  sue  without  delivery  of  bill  when  consignor  releases  title, 
477. 

or  upon  re- indorsement  of  bill,  478. 

where  bill  is  indorsed  in  blank  no  title  is  vested  until  blank  is  filled,  480. 

consignment  not  conclusive  evidence  of  title  in  consignee,  479,  480,  481. 

making  goods  deliverable  to   vendor's   order  prima  facie  evidence   of 
intention  to  reserve  ^ws  disponendi,  482,  483. 

making  goods  deliverable  to  vendor's  agent  has  same  effect,  484. 

514 


INDEX. 

TITLE — (continued). 

presumption  strengthened  when  bill  pledged  to  secure  draft,  485,  486. 
shipment  in  vendee's  vessel  does  not  conclusively  rebut  presumption  of 

reserved  control,  487,  488. 
reservation  of  jus  disponendi  question  of  intention  where  consignee  is 

consignor's  factor,  491,  492. 
bill  transferable  by  indorsement  and  delivery,  493. 
title  may  be  passed  by  other  modes  of  assignment,  494. 
title  transferred  by  delivery  of  bill  unindorsed,  496-501. 
character  of  pledgee's  title,  509  et  seq. 
TORNADO,  loss  by,  is  by  act  of  God,  190. 
TRANSFER: 

bill  is  means  of  transferring  title  to  goods,  421. 

transfer  of  the  bill  passes  such  title  as  it  was  the  intention  of  the  parties 

to  pass,  438. 
duplicate  receipts  or  bills  must  be  so  stamped,  443. 
bill  is  transferable  by  indorsement  and  delivery,  493. 
title  may  be  passed  by  other  modes  of  assign-ment,  494. 
when  carrier  need  require  no  indorsement,  495. 
title  may  be  transferred  by  delivery  of  bill  unindorsed,  496,  497,  498, 

499,  500,  501. 
delivery  must  be  with  intent  to  pass  property,  502,  503. 
transfer  of  bill  by  delivery  containing  no  words  of  negotiability,  505,  506, 

507. 
effect  of  transfer  varies  with  intention,  508. 

right  of  stoppage  in  transitu  defeated  by  transfer  of  bill  for  value,  533. 
right  of  stoppage  not  defeated  where  transfer  is  fraudulent,  536. 
transferree's  knowledge  of  vendee's  insolvency  or  that  goods  were  not  paid 

for,  537. 
consideration  for  transfer,  538,  539,  540,  541,  542,  543. 
right  of  stoppage  not  defeated  unless  bill  is  transferred,  547. 
notice  of  stoppage  to  carrier  after  vendee's  transfer  of  bill,  548. 
TRANSPORTATION  COMPANIES,  are  common  carriers,  9. 

ULLAGE,  is  included  In  exceptions.  Inherent  defect,  etc.,  282. 
UNIFORM  BILL  OF  LADING: 

growth  of  the  uniform  bill,  549. 

originators  of  the  uniform  bill,  550,  551. 

benefits  resulting  from  the  uniform  bill,  552. 

form  of  the  uniform  bill,  553. 
UNLOADING.  See  Loading. 
USAGE,  rules  for  construing  bill  with  reference  to.     See  Contract. 

VALUE : 

statement  of,  33. 

effect  of  knowledge  by  carrier  of  true  value,  34. 

515 


INDEX. 

YALlJE—{contmued). 

shipper  not  bound  to  state  value,  35. 

legislation  requiring  statement  to  be  made  of  value,  36. 

shipper,  if  asked,  must  state  value  truly,  37. 

shipper  must  not  deceive  as  to  value  by  manner  of  shipping,  38,  39,  40,  41 . 
VENDEE : 

right  of,  to  demand  bill  of  lading,  422. 

not  entitled  to  all  existing  copies,  423. 

may  by  indorsement  of  bill  confer  indefeasible  title,  460. 
VERBAL  AGREEMENT  : 

cannot  vary  contractual  terms  of  bill,  65. 

not  merged  where  terms  are  omitted  by  mistake  from  bill,  65. 
VERMIN  : 

loss  by,  not  covered  by  exception  perils  of  the  sea,  272. 

loss  by,  not  nvithin  exception  perils  of  the  sea,  299. 
VICIOUSNESS.  meaning  of  phrase,  217,  218,  219,  220,  221,  222. 

WAGONS,  the  owners  of  may  be  common  carriers,  9. 

"WEIGHT,    statement   of,    only   prima  facie    evidence   of  amount   between 

original  parties,  25. 
WEIGHT,   CONTENTS  AND  VALUE  UNKNOWN,   effect  of  phrase, 

61,  62. 
WEIGHT  UNKNOWN,  effect  of  phrase,  58. 
WORMS,  loBS  by,  not  covered  by  exception  perils  of  the  sea,  272. 
WROUGHT  AND  UNWROUGHT,  meaning  of  the  words,  82. 
516 


I 


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LAW  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 

LOS  ANGELES 


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